Abstract
Anticorruption has become the fulcrum of conditionalities for unstable democracies. In the EU, antigraft packages formed the common denominator of stabilization policies for Romania, Bulgaria, the Western Balkans, Moldova, and Ukraine. Union conditionalities trailed broader international trends and campaigns. The shift led to a crescendo of institutional innovations. Discursively, it generated a degree of conceptual overlap: anticorruption, for peripheral stabilization purposes, equates with the rule of law. I argue that the exclusive stress on anticorruption as a panacea for the (semi)periphery is fraught with perplexities. Paradoxically, in systems that can be reliably described as corrupt, the policy has a propensity to be derailed from its ostensible purposes. This danger results partly from categorial tensions between RoL normativity, on the one hand, and, on the other, the ethical purism and policy quantification inextricably linked with anticorruption. In the context of peripheral crusades, tendencies towards legal instrumentalism and populist emotionalism are exponentially higher than in stable jurisdictions. Consequently, unidirectional attempts to stabilize such systems by way of repressive anticorruption backfire. Likelier results are instability or forms of stability that might not correspond to central, received understandings of how a rule of law liberal-democratic system should operate. By the same token, in the integrated transnational constitutional system located at the intersection of EU and Council of Europe guarantees, “reverse conformities” tend to upset core tenets and representations of the rule of law. The paper argues that anticorruption policies, albeit eminently useful, should be fettered by rule of law constraints, not equated with the notion of the rule of law.
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1 Introduction: The Corrupt Periphery
Repressive anticorruption is a staple instrument in the toolkit of law and development. Either by leveraging domestic campaigns or through structural reform conditionalities applicable to the periphery, anticorruption has been represented as conducive to and coextensive with the rule of law. The question addressed by my article is whether punitive anti-sleaze policiesFootnote 1 will bring about the state of affairs envisioned by reform entrepreneurs. Will anticorruption help the Romania, Albania, Bulgaria, etc. to ‘become Denmark’ (Mungiu-Pippidi 2013) and ‘have’ the rule of law?
Thus far, the resilience of the solution has gone against the grain of at best mixed experience. In a range of diverse settings, from 1990s Italy to 2010s Brazil, anticorruption campaigns have missed their marks. Lack of success is not incidental and, in what follows, I question in point of principle the optimistic view on the ability and desirability of harnessing the radical transformative power of “[anticorruption] enforcement ‘on steroids’” (Gonzalez-Ocantos et al. 2023), p. 7) in order to effect positive change. My argument is in no way inimical to the pursuit of anticorruption as such, a good thing by any account. I challenge radical peripheral quick-fixes, embedded in rule of law structures of justification.
My approach is three-prong. First, as I argue, anticorruption is in conceptual tension, if not at loggerheads with the rule of law. Even though the rule of law is a complex concept, anchored also in contexts (e.g., Loughlin 2009, also in this issue), its generic usefulness as a legal term of art is normative and limited. Insofar as the various liberal traditions have converged into a comprehensible common denominator,Footnote 2 the focal point is the protection of the individual (Shklar 1987). Conversely, anticorruption is on the one hand a punitive policy and, on the other, an evaluative term with a strong emotive-ethical component. When focus is shifted from the traditional scope to the “coercive capacity of the state and its disciplinary structures and effects”, what results is “a very different if still related animal to the rule of law” (Humphreys 2011 at 174).
Second and paradoxically, this contradiction is in practice particularly problematic at the periphery, in systems that can be reliably described as ‘corrupt’ and appear to need anti-graft crusading the most. Even though there is no denying that corruption affects them gravely, the stress on anticorruption is fraught in unstable systems with intractable perplexities. In such systems, the policy has a high propensity to be hijacked and instrumentalized by the manipulation of both anticorruption-driven ideologies and effectiveness imperatives. Vicious rather than virtuous cycles eventually result from local pathologies and lead to their reinforcement.
Third, wider implications of such normative collisions can potentially reshape the centre-periphery dynamics. Anticorruption narrativesFootnote 3 may occasionally embrace ‘geographical morality’ connotations and undertones (Padideh Ala’I 2000)Footnote 4 but the categories of periphery and core are not used here polemically. The terms are indicative of realities, crystallized in conditionalities. In the EU, RoL reforms have been negotiated with countries that were at the time of accession negotiations and in many ways still are peripheral in in comparison to the systems of the liberal-constitutional core. The Copenhagen criteria and a new modality of enlargement were adopted precisely in the spirit of recognizing a rift between the EU-15 of 1995 and post-communist jurisdictions ante portas and spelling out how it could be bridged.Footnote 5 By the same token, once the metamorphosis takes place, the principle of equality of states formally prevails, including in terms of standard osmosis. More generally in recent yearsFootnote 6 and constitutively in dense orders such as the EU, core and periphery are thus useful socio-legal heuristics, not fixed categories.
To exemplify these claims, I will draw on European practices, assessed comparatively. My examples will bear more heavily on Romania, against the backdrop provided by practices in comparable jurisdictions on which anticorruption conditionalities were or are imposed (Albania and Bulgaria). Romania was under a formal conditionality, which doubled down on a long, politically and socially polarizing campaign. Contrariwise, Bulgaria, subject to an almost identical pre- and post-EU accession formal conditionality, avoided its implementation from the very onset.Footnote 7 Albania, as well as the other current candidate countries slated for eventual accession (more recently, Ukraine and Moldova), has been under a strong conditionality, strongly enforced, especially through the judicial vetting process. Unlike in Romania, Albanian anticorruption did not upend the political system but appears to have further stabilized it. To check for external validity, the analysis also factors in Brazil, rocked by Operation Car Wash (OCW) between 2014 and 2021. Brazil is considered here as a ‘control’ or ‘most dissimilar’ (Hirschl 2005) peripheral case (Neves 1992). The OCW campaign was primarily endogenous, with international OECD, Inter-American and US leveraging (Sanchez-Badin and Sanchez-Badin 2019; Brewster and Ortiz 2020; Gonzalez-Ocantos et al. 2023, at p 265). Finally, references to the implications and overall context of the Tangentopoli campaign are inevitable. Italy (endogenously-driven campaign, without international conditionalities or leveraging of the campaign) is not formally a peripheral jurisdiction. Italian practices served, however, as a blueprint or prototype for subsequent anticorruption drives, by voluntary imitation (Moro 2004) or as “Ikea-style” design exports (Benvenuti and Paris 2018).
The diversity as well as intersecting similarities of jurisdictions subject to analysis make possible the application of the full gamut of the comparative method. Implications of the case selection will be worked out throughout, to substantiate the general argument that anticorruption campaigns or conditionalities conflict with the general values informing the rule of law concept and are suppressive of rather than conducive to realities that would conform to the notion.
The following section, forming the bulk of the article, analyzes the ways in which anti-graft policies interact with values informing received accounts of the rule of law, bearing on three essential dimensions: impartiality, legality and fair trial guarantees, and judicial independence. A third part will focus on the inescapable law/politics nexus in peripheral anticorruption, hence, impliedly, also on the democracy and rule of law correlation. The fourth articulation of the paper probes the way in which some problematic connotations of anticorruption, designed for peripheral settings, migrate paradoxically to the center, producing what I call here ‘reverse conformities.’ I will, in this respect, address the way in which anticorruption policies have produced generalizable, difficult to contain effects in recent CJEU and ECtHR landmark cases. The article closes with an exploratory, cautionary conclusion.
2 Rule of Law and Anticorruption: Normativity and Policy
2.1 Corruption, Corruption Crimes, Anticorruption
A common misconception equates anticorruption with the prosecution of corruption crimes. Corruption crimes such as active and passive bribery or influence peddling exist in all modern criminal codes. However, anticorruption is not a legal notion but an ideological poise underpinned by specific, weighted representations about how democratic politics ought to function. Such representations may or may not transpire into legal interpretation.
Consider an example. In 1903, Dickinson, a New York alderman, was convicted by the Supreme Court of New York, Appellate Division, under a state bribery statute. He had conditioned his vote for additional money to be allocated to the street cleaning department for a new plant in Brooklyn on the reinstatement by the street commissioner, a certain Woodbury, of an employee named Covino. The alderman stated that he believed the latter to have been unfairly dismissed. In the event, the court convicted the alderman for bribery, as conditioning the fulfilment of an official duty on the receipt of -under an element of the statutory definition of the crime- “anything of value”. The reasoning bears a somewhat extensive quotation:
“The interests of the public service require that public officers shall act honestly and fairly upon propositions laid before them for consideration, and shall neither be influenced by, nor receive pecuniary benefit from, their official acts, or enter into bargains with their fellow legislators or officers or with others for the giving or withholding of their votes, conditioned upon their receiving any valuable favor, political or otherwise, for themselves or for others….It is quite as demoralizing to the public service, and as much against the spirit and intent of the statute, for a legislator or other public official to bargain to sell his vote or official action for a political or other favor or reward as for money. Either is a bribe, and they only differ in degree.”Footnote 8
In its jurisdiction of origin, Van De Carr is a textbook example of an extravagant interpretation. It rests on a purist vision of politics that was eventually found unsustainable. Whereas any understanding of democratic politics would condemn the receipt of material benefits for the performance or not of a public duty, the idea that any measure of political informality (logrolling, vote-trading, tit-for tat) could be criminally prosecuted was discarded as untenable. Given the time when the verdict was rendered, it may or may not have been that the judge was influenced by the turn-of-the-century malaise with Tammany Hall-style politics and politicians that characterized the onset of the Progressive Era. The record as such does not show (Eskridge et al 2001, p. 274). The example is inchoately indicative of the concept-stretching that is inevitable in programmatic anticorruption, which is premised on the notion that “the pursuit of absolute integrity” (Anechiarico and Jacobs 1998) will produce the systemic stabilization of a rule-based society.
In the specific EU framework, anticorruption was initially a marginal criterion. When Slovenia filed its application for EU accession in 1996, the last of the then-thirteen candidate cohort, there was literally no acquis on corruption and no EU country was party to any anticorruption treaty (Schroth and Bostan 2004 at 636). Pre-accession monitoring of the ‘Big Bang’ enlargement emphasized judicial independence via judicial self-government (Kosař, 2016), as the predicate of reforms negotiated under the canopy of the rule of law prong of the Copenhagen criteria. In the class of 2004, only Slovakia, perceived as particularly vulnerable, was prodded to create, in 2003, anticorruption institutions. Anticorruption became the fulcrum of RoL conditionalities after 2004 (Szarek-Mason 2010), with corruption, especially high-level graft, serving as the main explanatory ingress point into addressing peripheral problems.
One can understand this shift as partly trailing broader transnational trends, partly giving effect to new contexts, which appeared in need of more radical responses. As regards trends, the EU and its sister organisation, the Council of Europe, were jumpers on a global bandwagon. European reforms echoed prior Washington Consensus, IMF and World Bank structural reform packages (McCoy and Heckel 2001) and mirrored resounding anticorruption campaigns in other peripheral systems and shifts of paradigm in core jurisdictions.Footnote 9 Anti-graft changes were first implemented in Ukraine at the behest of the IMF and the US State Department, seconded by the Venice Commission and the EU External Action Service. Policy shifts are, in turn, entwined with the spread of the rule of law indicators centred on integrity and the rise of a global anticorruption industry (Sampson 2010). Corruption perception indexes compiled yearly by Transparency International were the initial catalysts (the Corruption Perception Index (CPI), from 1995 onwards and the Bribe Payers Index, from 1999). Nowadays, a preoccupation with ranking relative integrity involves a broad range of international and transnational entities, public and private. A 2017 study on various rule of law indicators used by government bodies and transnational NGOs such as Freedom House revealed for instance that, even though the indicators have been differently conceptualized from one body to another and some conceptualizations did not even include anticorruption, the country scores as such correlate well with one another and perfectly with the CPI This led the authors to ponder whether rule of law indicators might “measure [perceptions of] corruption rather than the rule of law” (Versteeg and Ginsburg 2017, at 113). Rankings and numerical indicators imply that the phenomenon can be objectively quantified (Șerban 2015), which contributes to reinforcing anticorruption conditionality packages. If measurement is objective, milestones can be set, and progress over time can be assessed.Footnote 10
As regards new contexts, Romania and Bulgaria, poorer and appearing less stable democratically than the members of the 2004 cohort, were pinpointed on a lower circle of peripheral underdevelopment. Corruption seemed self-evident as a label of their predicament and as a point of ingress for redemptive RoL policies. The insistence on repressive anticorruption as the main stabilization policy for Romania and BulgariaFootnote 11 and subsequently for the Western Balkans, Moldova, and Ukraine, has led to a crescendo of institutional innovations. These range from independent prosecutorial watchdog in Romania to autonomous vetting bodies (Albania, Moldova, Ukraine) and to vertically integrated autonomous structures in Ukraine, from anticorruption police all the way up to a supreme anticorruption court. Discursively, this path dependency has led to a degree of conceptual overlap. Placing the stress on political corruption as the arch-evil and on anticorruption as panacea was a choice that replaced inquiries into more complicated causalities, such as poverty and brain-drain, regional cleavages, structural inequalities and social tensions, underfunded education and health care, shallow democratization reflected in generalized instrumentalism, institutional path dependencies, also pre-Communist, and the like (Bugarič 2015, Iancu 2020). Addressing these latter issues under the specific time-limitations of Enlargement is however impossible, within the constraints of the EC’s mandate in the pre-accession process, in the procedural logic of the enlargement. The Commission, as master of peripheral conditionalities, needs a vade mecum that can be translated into policies whose progress can be charted in progress reports.
A proxy must be found, and corruption was the obvious one, for a variety of reasons, ranging from Enlargement and European constitutionalism fatigue after 2004–2005, to value judgments about the inferior status of the newer periphery, and the already-mentioned availability of the policy solution in other law and development contexts. However, unlike prior reform preferences (such as the emphasis on judicial self-government or regulatory agencification), anticorruption places the concept and practice of the rule of law under much greater stress.
2.2 Anticorruption and Impartiality: Figures, Anecdotes, Conjectures
Both in the hypothesis of an endogenously driven campaign and in the case of conditionalities, once the momentum of anticorruption is set in motion, tensions inevitably ensue between traditional rule-of-law-derived representations about how a liberal-constitutional legal system should operate and anticorruption (re)presented as the rule of law.
Success or failure of campaigns are the functions of quantification (how many convictions, how harsh and deterrent the sentences in terms of man-years actually served, how high the political position of the accused and thus the exemplary function of the sanction, how many assets seized, how CPI/BPI rankings go up or down over time, thus signaling improvement or recess, etc.). Whether a campaign is successful or not will be assessed, more precisely, on the basis of numbers and profiles. The more high-level dignitaries are convicted severely, the more successful the campaign or effective the conditionality. Conceptually, under traditional rule of law understandings, this is problematic from the start. Dicey famously described the glories of the English rule of law precisely as a function of equality of all parties before the court (Dicey 1885).
To be sure, equality under the law also means that the strong should be punished according to the same rules and suffer the same punishment as the meek. Since peripheral systems are fraught with traditions of impunity, “forc[ing] the powerful to appear in court, send[s] a strong message of legal equality.” (Gonzalez-Ocantos et al. 2023, at 170). Anticorruption has accordingly transformed this otherwise unquestionable desideratum into a good-standard pressure on the institution of immunities, a drive that finds its justifications in the policy imperative of demonstrating success by high-profile indictments and convictions.Footnote 12 By the same token, impartiality is also arguably in low supply in peripheral systems. Upending traditional constitutional instruments such as immunities incurs significant risksFootnote 13 and comes at the price of a leap of faith in the unknowns of prosecutorial and judicial impartiality.
More importantly, going programmatically after high-profile defendants often provides the appearance of targeted prosecution, with detrimental effects on the credibility of anticorruption. The logic as such of success in pie-chart format (three ministers, one prime-minister, twenty deputies, four judges, etc.) is jarring to traditional sensibilities. Statistically, work on Latin America and Eastern Europe indicates that political weakness (losing elections or membership in fringe parties) is the best predictor of prosecutions, at least in the case of high executive dignities (Popova and Post 2018). In Brazil, the Lula conviction was broadly considered abusive, especially after the Intercept leaks. In Romania, a justice of the Constitutional Court was indicted for what in retrospect appears to be a ludicrous, trumped-up charge concerning an ostrich farm, which allegedly provided meat, supposedly exported to Russia via Turkey, thus flaunting post-Crimean occupation sanctions on the Russian Federation. The justice was later acquitted, on the grounds of the inexistence of the corrupt act.Footnote 14 Albanian vetting, reviewed below, is replete with disqualifications that appear suspicious, of apex members of the judiciary: Constitutional Court judge during her application for the ECtHR national judge selection process, members of the high prosecutorial council, etc.
In a juristic reading of these and many similar high-profile indictments or convictions, appearances mean little. Each case is its own small technical universe of form and substance: ‘the first instance (or appeals) court has decided’. Conversely, in an anticorruption-driven interpretation, since belief provides its own justification, anecdotes and suspect overlaps can be explained away, as incidental-accidental-coincidental: ‘the wheels of justice cannot be stopped just because an election cycle is approaching’.Footnote 15 The rate of acquittals, likewise, says little about the success or failure of anticorruption. Acquittals are evidence of the normal functioning of the legal system, in any liberal-constitutional jurisdiction.Footnote 16 A higher rate could for instance be attributed to a failure by the judges to carry out their tasks dutifully, to the poor instrumenting of the prosecution’s case, or to any other number of reasons, such as, for instance, the impact of judicial review on the constitutionally acceptable parameters of a specific crime. The trivial nature of a specific charge is no necessary indicator of tactical political motives, especially as any stakes, however diminutive, can be discursively loaded with high expectations of probity, derived from the ethical side of ideological anticorruption.
In Romania, as this is written, a former prime minister, whose mandate straddled the worst of phase of the pandemic (2020–2021), and two health ministers of a smaller anticorruption party in the then-ruling centre-right coalition have been charged by anticorruption prosecutors with abuse of office and complicity thereto.Footnote 17 They are accused of having purchased, without going through the necessary procedural steps, Covid vaccines well in excess of actual needs and thus producing an assessed damage of approximately 1 Bn. Euros to the Romanian state. No actual pursuit of personal benefits is imputed. In the past, the absence of evidence of actual material benefits had however been sometimes disregarded in the case of high-ranking politicians (Van de Carr-style, as ‘pursuit of non-patrimonial benefits consisting in political capital’). The anticorruption party, now in opposition, accuses the prosecutors of political targeting in view of next year’s elections. In return, it receives a strong dose of its own past medicine: the wheels of justice move in mysterious but principled ways, justice will decide, the accused will have the opportunity to prove their innocence in court, etc.
The legal system is a closed one and its acts, embellished by Coke’s “artificial reason of the law”, the “myth of legality” (Gonzalez-Ocantos et al 2023), benefit in principle from a much stronger presumption of ex ante legitimacy than those of the majoritarian branches. This is due to the widely shared belief that judicial decisions are legally bounded and presumed to be rationally constrained.Footnote 18 Outwardly, agreement or dissatisfaction with specific outcomes can only be translated by way of rough proxies: conjectures and conspiracy theories vs. applause and Schadenfreude. Nefarious intent as such, in prosecution or adjudication, is almost impossible to ascribe, except in the rarest of cases (e.g., Intercept-style leaks). Even in such extreme hypotheses, charitable readings are not necessarily excluded.Footnote 19
General constraints are compounded significantly by the effectiveness-driven nature of programmatic anticorruption and by the radical impact it has on political systems. To show equanimity, campaigners and anticorruption watchdogs usually go to great lengths to distribute indictments and convictions across the political spectrum and high-ranking profiles. However, anticorruption tenets are not amenable to falsification and such exercises may just as easily be interpreted as in blatant contradiction with RoL-driven impartiality imperatives. Furthermore, under anticorruption-driven policy and ideological imperatives, legal normativity as such is a variable category.
2.3 All is Fair in Anticorruption Wars? Legality and Due Process Concerns
Liberal understandings of the rule of law are also centred on legality and due process guarantees, which form the crux of Fuller’s influential procedural theory on the rule of law (Fuller 1969). The theory is abstract-analytical and ideal–typical in nature, meaning that no legal system applies all eight ‘elements’ indiscriminately in all branches of law.Footnote 20 Nonetheless, liberal systems generally recognize in the field of criminal law a strict application of legality guarantees and the skewing of interpretive doubt in favour of the defendant (legality of incrimination, rule of lenity), the strict interpretation of norms (for instance, the prohibition of analogical reasoning), de minimis interpretations shielding trivial acts from prosecution and/or conviction. Constitutional criminal law protections also include a palette of special due process guarantees, such as the presumption of innocence and strict judicial controls on pretrial measures, including limitations on pretrial detention. Such safeguards, albeit they can be abused, favour the defendants, irrespective of who they defendants are.Footnote 21
In the ‘sanitizing rhetoric’ of fights against corruption, procedural and substantive guarantees appear however wholesale as hindrances to the achievement of broader societal objectives. As the lead prosecutor in Lava Jato, Deltan Dallagnol, put it, rights are ‘filigree’, meaning finery to be deferred for a post-corruption-eradication horizon (Bastos dos Santos and Solano Gallego 2022, at 293). The same prosecutor also opined, according to his “Christian cosmovision”, that, since “corruption kills” and since “God [was] acting though these circumstances and giving us a unique historical opportunity to promote changes in favor of a more just and honest society”, the yardstick for the prosecution of corruption crimes “must be murder” (Leitão and Gribel 2015).Footnote 22 Divinity invocation aside, what this means in essence is a double loading of the dice or a double-bind placed on the rule of law. The prosecution of corruption crimes should be given Nuremberg Trials-like latitudes and leeway, as if crimes against humanity or mass murder were combatted, whereas traditional defence standards should be lowered in inverse proportion, until the fight is won. Zeal in the name of the higher purpose and the systematic bending of rules to attain it are intrinsic and universal features of crusades. Eventually, these features are also their undoing: the need for zeal and unorthodox measures is legitimized by the same “myth of legality”, which in term the steady use of such instruments eventually erodes (Gonzalez-Ocantos et al. 2023).Footnote 23
In all anticorruption campaigns, normative frameworks are invariably under pressure, with a view to securing high-end convictions and in the name of the higher ethical ideal propping the campaign. Brazilian practices reveal the full gamut of transgressions, both procedural (leaks of wiretap transcripts to the press, coercive uses of pretrial detention, plea bargaining induced by discretionary uses of pretrial measures) and substantive (expansive interpretations of special and general criminal law norms, based upon unsubstantiated or looser lines of logical causation). In the latter respect, the innovative use of the doctrine of command responsibility (Tatherrschaft), reinterpreted as ‘control theory of perpetration’ (domínio do fato) stands out. One of Da Silva’s convictions was essentially based on indicia that a company wanting to secure a contract with the state oil giant Petrobras planned to give him as kickback a beachfront penthouse condo (which he never used or held title for) in exchange for an intercession, which he must have made, having ‘functional control’ over Petrobras appointments.Footnote 24 He was convicted at several removes of interpretation: agency and intent were implied, lack of a title interpreted as evidentiary proof of hiding property. Brazilian prosecutor Dallagnol argued already in his master’s thesis for a reversal of the presumption of innocence in corruption cases to a presumption of guilt, with onus on the ‘corrupt’ defendant to prove innocence. Judge Moro, leaning on Italian precedents, intimated that corruption trials best be decided (also) in the court of “enlightened” public opinion (Limongi 2021).Footnote 25 By skilful and highly innovative jurisdictional ‘forum-shopping’ by judges and prosecutors involved, all grand corruption cases were systematically moved to the court of judge Moro (Brandao 2022, at pp. 235–238). This move relied on and also reinforced the judge’s heroic profile and ensured close collaboration with the prosecutorial task force and of both with the court of public opinion (see discussion in Sect. 2.4., infra).
Such incentive structures and determinations cut across systems, being intrinsic in the dual, mutually reinforcing nature of anticorruption instrumentalism: the need to secure convictions, to feed the campaign drive and demonstrate success by numbers, on the one hand, and the ethical purism driven by the unreasonable representation of a corruption-free ‘equilibrium’ or ideal baseline, on the other.Footnote 26 Romanian anticorruption, kept alive for a much longer span primarily by the perpetuation of the post-accession CVM, had initially the merit of temporarily displacing the local culture of political impunity. This achievement was however progressively overshadowed by amassing questionable practices. The need to secure large numbers of high-profile convictions induced, for instance, a spike in surveillance, a tendency that originated in anticorruption prosecutorial practices but eventually spilled over in general criminal justice. The number of wiretaps exponentially increased and courts approved them almost unanimously.Footnote 27 At the High Court, which issues national security warrants, discussed in the next section, the approval rate ranges, for example, constantly around 99%. In Robespierrian key, this tendency towards surveillance was for a long time naturalised-rationalised as needful and unproblematic: the innocent has nothing to hide.Footnote 28
Many high-profile convictions in Romania were secured on abuse of office charges. The crime is an assimilated corruption offence and essentially meant that any administrative irregularity could be prosecuted as a corruption offence, if committed by an official whose position brings him or her within the scope of DNA’s prosecutorial jurisdictional competence. The Constitutional Court interjected and declared unconstitutional as applied (verfassungskonforme Auslegung) a definition of the crime that would encompasses the breach of administrative norms (as opposed to clear norms of primary legislation), if the irregularity does not produce a significant damage. The decision was criticised as impeding the fight against corruption, notably by Laura Kövesi, the chief prosecutor of the DNA (as she then was), with the argument that, as a result, Romanian citizens had forfeited 148 million Eur.Footnote 29 This amount was floated on the basis of a computation of the sum-total of prosecutorial assessments, in various files, of the damages produced by the corrupt acts. The stipulation, which was widely bandied about in the anticorruption camp, is normatively fictitious, since it assumes rubberstamp judicial endorsements of the charging acts. Otherwise put, it assumes that the court has no role in the resolution of cases, which is paradoxical, perhaps nonsensical in a traditionally understood rule of law-based state.Footnote 30 The statement also assumes that no other avenues exist for correcting errors, such as administrative or civil actions, which remained open after partial decriminalization. In the spirit of anticorruption effectiveness, however, the Chief Prosecutor’s statement was perfectly justified. Similarly, attacks by task force prosecutors and occasionally also federal judges on the Supreme Federal Tribunal of Brazil were rife, whenever decisions that curbed in any way anticorruption ambitions were rendered (de Sa e Silva 2020, at 105–106).
2.4 Structural Aspects: Enhanced Autonomy, Prosecution Bias
2.4.1 Political Neutrality and Perverse Politicization: Judicial, Systemic, and Anticorruption Independence
At the institutional level, the principle of the rule of law requires neutral adjudication, guaranteed by independent and impartial courts (Dicey 1885; Raz 1979; Tamanaha 2004). Anticorruption, contrariwise, demands forms of institutional and systemic autonomy deemed instrumental to policy effectiveness. These latter forms of autonomy are not necessarily conducive to judicial independence proper and may collide with it. As the authors of a recent monograph on anticorruption prosecutors in Latin America noted, “processes of institution building ought to carefully consider what kinds of improvements “really existing democracies” can support” (Gonzalez-Ocantos et al. 2023, at 266; see also Prado et al. here).
With a view of producing the trickle-down outcomes of anticorruption, integrity agencies were created with exclusive remit over the prosecution of serious corruption offences, committed by high-level officials. In the specific context of the EU, the prototype was essentially the ‘Romanian model’.Footnote 31 The blueprint rests on a prosecutorial watchdog, the National Anticorruption Directorate (Direcția Națională Anticorupție, DNA), created in 2002 and overhauled in 2005 as a functionally self-contained prosecutorial unit.Footnote 32 Until 2016, only the anticorruption directorate disposed of its own investigating police force. The DNA has a central unit in Bucharest and territorial sections corresponding to the seats of the Courts of Appeal. Its prosecutorial jurisdiction extends over classical corruption crimes but also assimilated offences. Personal competence covers a long list of officials, ranging from MPs to policemen.Footnote 33 The independent agency character of the prosecutorial body was in turn reinforced by an adaptation of the judicial council model (Kosař and Bobek 2007). Whereas the good practice model of the judicial council recommended by the Union and the Council of Europe to new democracies should comprise at least 50% elected magistrates in its membership (the rest could be lay and ex officio members), the ratio is much higher in Romania (14 out of 19 prosecutors and judges, elected by their peers), with prosecutors strongly autonomised vis-à-vis the executive (cf. Prado et al. in this issue).Footnote 34 The new template perceived as justified in the Romanian case, since conducive to a better pursuit of anti-corruption (Selejan-Guțan 2018).
The blueprint was tweaked in newer generations of anticorruption conditionalities, also in correlation with the degree of perceived corruption attached to the newer peripheries. In Albania, an extensive vetting of the entire judicial system, including the Constitutional Court, was undertaken, relying on decisions made in first instance by a sui-generis, hybrid tribunal, subject to appeal to another hybrid quasi-court, a ‘special chamber’ attached to the Constitutional Court. A similar, comprehensive vetting process unfolds currently in Moldova. In Ukraine, the good practice of independent prosecuting authorities was complemented by the creation of a permanent special anticorruption court, which, although a part of the judicial system, is not jurisdictionally subordinated to the regular, ‘ordinary’ apex court. The presumption in these latter cases was that not only that the political system was tainted (Romania) but that the judiciaries as such were putatively corrupt and could not be trusted to carry out this task (Albania, Moldova, Ukraine).
Structural judicial autonomy has been long noticed to eventually reproduce patterns of political polarization within the judicial system, as shown by the Italian politicization of the judiciary in professedly political correnti (Benvenuti and Paris 2018). In the case of Romania, at the height of the anticorruption campaign, judicial associations were neatly divided and opposed along ideological-political lines, closely mirroring the positions of political parties and coalitions, clad in legalese.Footnote 35 Law and politics of anticorruption are hard to disentangle from one another in anti-graft on steroids. Judges or prosecutors involved in the crusades, albeit barred from formally seeking political endorsement, do not distance themselves from parties and movements supporting and bolstering their institutional agendas. This is understandable prudentially in the logic of the ‘fight’ or ‘war’ against corruption. By the same token, such alignments undermine the legitimacy of the judicial fight, predicated upon neutrality.Footnote 36
Since anticorruption presupposes more “flattened” judicial systems (Gonzalez-Ocantos et al 2023 at p. 36), infighting occurs alongside ideological dimensions, but also in terms of jurisdictional tiers, with younger prosecutorial and judicial crusaders battling politicians but also, often, higher-ups in the upper tiers of the court system and the Public Ministry. The Mani Pulite campaign in Italy was represented by its heroes as antisystem fight of the judicial underdog. Polarization as well as the need to communicate effectively and constantly with the media in order to keep the momentum high, inevitably produce a need for judicial “superheroes”. This need goes against the grain of received rule of law understandings of judicial office, which justify independence from politics to begin with. Personalization of institutions is at any rate broadly considered to be in tension with modern RoL and generally liberal-democratic understandings. In Brazil, and Romania, the fight against corruption created forms of ‘judicial populism’. Lead prosecutors such as Antonio di Pietro in Italy (constantly referred to in the press as ‘judge’), Daniel MorarFootnote 37 and Laura Kövesi in Romania, and Deltan Dallagnol in Brazil and occasionally judges (Sergio Moro, of global renown, Romanian cassation and High Court judges, of lesser notoriety) were lionized by the judicial and political factions monopolizing the discourse, as ‘lone rangers’ (Mota Prado and Rodriguez Machado 2022, at pp. 285–286). This tendency is inherent in anticorruption and its mock-Luhmannian discursive need for reductive, Manichaean dichotomies. Insofar as apex courts curb the effectiveness of the fight against corruption, they are placed under significant pressures, both lower-judicial and political. In Romania, the Constitutional Court and, occasionally, the High Court or the judicial section of the Superior Council of Magistracy have been constantly attacked as friends or fellow-travelers of ‘the corrupt’. In Brazil, the Supreme Federal Tribunal, which serves primarily as a sui-generis constitutional court, was assailed whenever its judgments dented the campaign's effectiveness. In Albania, the Constitutional and Supreme Courts were crippled by the vetting process for years.
2.4.2 Place of Prosecutors, Prosecution Bias, Institutional Partnerships
By structural design, conditionality-driven anticorruption reforms presuppose an enhancement of the role of prosecutors. A high degree of systemic autonomy, flattening of traditional judicial hierarchies, a measure of conflation of the roles of judges and prosecutors are conditions for the possibility of anticorruption. In Italy, where Tangentopoli erupted for endogenous reasons and unfolded primarily within internal incentive structures, these institutional preconditions predated the campaign (Nelken 1996; Guarnieri 1994; Sberna and Vannucci 2013, 581–582). In Brazil, as well as Latin American countries where Lava Jato chapters unfolded robustly (Ecuador and Peru), endogenous reforms were reinforced by conditionalities nudging towards judicialization, reinforced autonomy, and bureaucratic specialisation of task-forces within Public Ministries (Gonzalez-Ocantos et al. 2023, Mota Prado et al. here).Footnote 38
In classical rule of law hermeneutics, the tendency toward reinforcing across the board prosecutorial roles and heaving law enforcement to a quasi-judicial role are not unproblematic. The status of prosecutors has been commonly regarded as inferior to that of judges, since the court's position reigns supreme.Footnote 39 International guidelines recognized the distinction until relatively recentlyFootnote 40 and prosecution bias has traditionally been considered a vice, not a virtue. Anticorruption upsets these assumptions, with unintended paradoxical consequences.
To wit, the first monitoring report by the European Commission on the Romanian CVM noted a failure of the judges to appreciate the importance of anticorruption and apply harsh, deterrent sentences on defendants in high-profile cases (as required by the prosecutors in the charging act).Footnote 41 In a normative reading, however, for judges to apply harsh sentences programmatically, in one type of cases, amounts to a denial of justice and dereliction of their rule-of-law driven duty to judge impartially each case, according to the law and facts. In a revolutionary Brazilian Supreme Tribunal judgment accepting the General Prosecutor’s plea for a very lax reinterpretation of parliamentary immunities, Justice Carmen Lucia reasoned in obiter that immunity, impunity, and corruption would not be allowed by courts to “kill the renewed hopes of the Brazilian people.”Footnote 42 In 2013, the Romanian President of High Court of Cassation and Justice (as she then was; currently a Constitutional Court justice) pledged, during the festive presentation of the anticorruption prosecutorial unit annual report, the support of all judges for rule of law and national security and declared herself “a reliable partner, completely and unconditionally” of the anticorruption prosecutors.Footnote 43 The judge was criticised for so doing, a reproof which is understandable in a classical reading key but not according to war on crime imperatives. Partnership with prosecutors tendentially means, in the judicial context, accepting relaxed interpretations of criminal legislation and constitutional criminal law guarantees, as a means to the end of reaching the goal of a corruption-free society.
In Brazil, sub rosa collusion with the judges was key to both the initial result-oriented success and eventual discredit and downfall of OCW. In Romania, where the position of prosecutors, particularly anticorruption prosecutors was enhanced, tensions increasingly grew between factions within the judiciary, reproduced also within the High Council, whose autonomy was, paradoxically, supposed to function as a second-order guarantee for the fight against corruption. Judges, especially the higher-level judges dominating the judicial section of the council, supported a reform that eventually removed prosecutorial jurisdiction of the anticorruption agency over members of the judiciary.Footnote 44 This opposition was based more precisely on the fear that the autonomous anticorruption prosecutor’s office, by opening files on judges or by keeping artificially open files initiated on the basis of complaints, pressured judges to issue ruling favourable to the prosecution in high-stakes anticorruption cases. Such concerns are substantiated by intriguing figures in Judicial Inspection reports, showing that virtually all former members of the CSM and scores of high-ranking judges had criminal files with the DNA, either opened sua sponte or on the basis of complaints and then left dormant for years. Between January 2014 and July 2018, 1459 criminal files regarding prosecutors (out of which 163 ex officio) and 1443 concerning judges, out of which 113 were opened suo motu. Numerous irregularities were found, including large numbers of files kept in active status artificially and failures to notify suspects after the closing of a file or after a surveillance warrant was executed, which did not result in a charge.Footnote 45
Related and more problematically, anticorruption was ‘securitized’ (Hogic 2023). On the basis of a still classified 2005 National Security Council (Consiliul Suprem de Apărare a Țării, CSAȚ) decision, corruption was declared a threat to national security. The act opened the way for cooperation, via ‘protocols’ (memorandums), between apex judicial institutions and the Romanian Intelligence Service (SRI). One of the protocols and a provision in another were eventually declared unconstitutional by the Romanian Constitutional Court (CCR), arguing that they created the premises for an occult justice system.Footnote 46 Prima facie, the documents are dry and technical but mention is made in one of them of “common operative teams” including prosecutors and intelligence officers.Footnote 47 In sync with the fight against corruption, the budget of the domestic intelligence agency increased significantly.Footnote 48 Inter-institutional task forces and enforcement cooperation with are key to anticorruption success and to a certain extent standard and even model practice in campaigns but introduce additional legibility imponderables to an already burdened equation (securitization in particular: additional opaqueness, selectivity, etc.).
3 Apolitical, Populist, and Geopolitical Anticorruption
The idea that robust anticorruption constitutes the keystone of the rule of law is appealing and chimes with instinctive representations about how institutions should operate in liberal constitutional democracies. Rule of law is a core value, whereas corruption is, as we all know, evil. Anticorruption is therefore presented as an apolitical program. Intuitively, it is easy to understand how and why it appears so: majoritarian politics, of whichever ideological leaning, does not equal graft. Nobody does, nor should anyone like corruption.
In discursive practice, the ‘neutralization’, de-politicization of anticorruption builds however on a wealth of idealizations, ignoring for instance the extent to which privatization or deregulation reformulate actions that could have been understood in terms of corruption as free opportunity or right.Footnote 49 More importantly, a tilt to the neoliberal right was embedded in the genetic code of such programs since the mid-1990s, when the law and development agenda was focused on removing indigenous corruption as a transaction cost hindering the opening of the peripheries to the global economy (Kotkin 2002; Humphreys 2011; Gonzalez-Ocantos et al 2023, at 41). Starting from the twin premises of a corrupt political system, reinforced by the campaigns, and of a pure, uncorrupted, stateless market, it is easy to conclude that the state is irredeemably corrupt and thus that no state equals no corruption.Footnote 50
In peripheral actualization, anticorruption campaigns are invariably hijacked and weaponized, partly as a result of the nature of anticorruption as such and the need of crusaders to secure broad support (Gonzalez-Ocantos et al 2023), partly as a consequence of the particular set of polarisation fault lines of peripheral systems, for which anticorruption law and anti-graft politics will act as powerful catalysts (Kiss and Székely 2021, Mungiu Pippidi 2018). As regular politics are recast and translated into this idiom, anticorruption politics will result in a competition for the selectively “successful imposition of the corruption label”, meaning the projection of unreasonable expectations of purity on political opponents.Footnote 51 In both Romania and Brazil, anticorruption as rule of law was appropriated by centre-right forces and fused at the hip with the ostensibly unrelated trope of anticommunism.Footnote 52 In the local contexts, socially polarised societies, this meant in the practice of the opposition to any form of redistribution as ‘communistic’, performed by ‘corrupt politicians’, and addressed to ‘captive electorates’.
Once unreasonable expectations are disappointed, campaign-style anticorruption populism tends to be replaced by full-fledged populism. After the consummation of Tangentopoli, the dismantling of the mainstream parties in Italy gave way to a long line of populist politicians. In Brazil, Lava Jato virtually eased Jair Bolsonaro into office, as a direct result of Lula da Silva’s conviction and Dilma Roussef’s impeachment. The aftershocks of the OCW Peruvian chapter apparently produced similar effects (Baraybar and Gonzalez-Ocantos 2022), reinforcing fragmentation and absenteeism in a context of pre-existing general cynicism, fragmentation and a weak party system, low levels of trust. In polarised environments (Italy, Romania, Brazil), the public-spirited promise of a cleaner society is eventually disappointed, with whatever optimism remains “present among those who derive satisfaction from seeing their figures of hate parading through the courts” (Gonzalez-Ocantos et al 2023, p. 235).
Additional falsification opportunities are presented by EU-driven reforms, where the anticorruption agendas are equated with the pursuit of the rule of law and also with the benefits of European membership. In Romania, for example, where the sizeable diaspora votes overwhelmingly right, overseas Romanians were narratively conscripted into a presumably clean and ‘European’ centre-right fight against the ‘corrupt’ centre-left (Iancu 2023). This was possible as long as a stable coalition between the traditional centre-right and a new urban middle class party founded on an anticorruption platform monopolized the anti-graft narrative. As soon as a populist, ultraconservative, Euro-sceptic alternative was on offer in the Covid-19 pandemic context, a sizeable portion of the diaspora vote promptly migrated to that party, thus negating overnight a mainstay of the staple anticorruption discourse.Footnote 53 This development could have been anticipated. The Manichean ethical language of anticorruption both obfuscates and repurposes bundles of peripheral contradictions under a veneer of rule of law tropes (longing for clean politics through impartial law, desire for progress, hopes for justice and collective redemption). Behind elated linguistic façades lurk leanings towards stratification and exclusion, penal or judicial populism (Pratt 2007) or punitivism (Mota Prado and Rodriguez Machado 2022, Mota Prado et al. in this issue) and more generally legal instrumentalism of all kinds.Footnote 54 These tendencies may reproduce and reinforce deep-seated local inclinations towards bad populism or illiberalism, often shared by local legal elites also (De Sa e Silva 2020; Brandao 2022).Footnote 55
Romanian anticorruption ebbed more slowly, as a consequence of its being pegged unto a formal conditionality, the CVM. This raises the issue of whether the current structure of the EU can nurture the beneficial elements of anti-graft policies (dismantling networks of power and undermining political impunity) and simultaneously control their pathological potential (tendency towards political populism and legal instrumentalism). The Commission is, by institutional set-up, predisposed to policy streamlining and prioritizing. No longer started the rule of law to be understood primarily as effective anticorruption than previous political acquis criteria began to be reinterpreted through the new lens. One example should suffice to illustrate this reordering. In the pre-accession period, as early as 2001, the Commission insisted in its Romanian monitoring reports that libel and slander should have been decriminalized. The supporting argument was that criminal charges would severely hamper muckraking journalism, which was essential for the pursuit of ‘robust’ anticorruption.Footnote 56 Eventually, in 2006, the Criminal Code of 1969 was amended by Romanian authorities to decriminalize libel and slander. The explanatory statement accompanying the bill makes explicit reference as to why the change was made, i.e., to “incorporate European standards and secure accession”.Footnote 57 Eventually, the Constitutional Court of Romania interjected and decided that the protection of dignity was unquantifiable in money (i.e., tort damages) and required recriminalizing libel and slander.Footnote 58 For a while thereafter, it was unclear whether the CCR decision effected re-criminalization (an abrogation of the abrogation). Nonetheless, once a new criminal code was adopted, which did not contain the crimes, the entire issue became moot. For a while, a general cross-party consensus existed in Romania to accept anticorruption as a neutral, apolitical public good. As chinks and cracks appeared in the anticorruption narrativeFootnote 59 and as the judiciary itself developed friend/foe positionings, with activism on both sides, muckraking journalism started to affect anticorruption ‘heroes’ as well, including judges and prosecutors. The Commission changed its narrative accordingly and started to advocate for restrictions on free speech “affecting judicial independence” (read: targeting anticorruption practices and judges and prosecutors involved as actors or active supporters in the “fight against corruption”).Footnote 60 In its 2021 rule of law country report on Romania, the issue is revisited even more forcefully. Now, Romanian authorities are themselves castigated for their failure to criminalize libel and slander back in 2009:
“The legislation meant to protect people’s dignity and reputation requires those interests to be balanced against the freedom of expression. MPM 2020 reports inconsistencies in the interpretation of the law and the gravity of the sanctions applied against journalists in that context. However, ‘libel’ and ‘insult’ have been decriminalised when the Criminal Code was [sic!] revised back in 2014.”Footnote 61
Dissonances, including the formal correctness of this statement,Footnote 62 could have certainly been handled better. However, the Commission is essentially not to blame for the contradiction, which is structural, embedded in the logic of rule-of-law as the advancement of the fight against corruption. The fundamental right to freedom of expression and the meaning of a free, pluralist media are subordinated to the imperative of the ‘predicate’ value defining the policy. The right to freedom of speech is therefore not a subject of analysis in and of itself, a self-standing institution surrounded by qualifications, guarantees, implicit and explicit norms (as in constitutionalism).Footnote 63 Its interpretation fluctuates as a function of the degree to which it advances or not the rule of law understood as anticorruption.
The evidence is also mixed as regards consistency in the implementation of the identically-defined post-accession mechanism in Romania and Bulgaria. Unlike its neighbour and CVM twin, Bulgaria did not create the autonomous institutions needed to implement effective repressive anticorruption policies. No high-ranking politician was convicted on an anticorruption charge. Against this backdrop, even though the country fared worse than Romania in corruption perception rankings,Footnote 64 the 2019 CVM country report recommended lifting the conditionality only for Bulgaria.Footnote 65 This happened months before a corruption scandal and anticorruption demonstrations and after years of ignored criticism, including criticism by the country’s Supreme Court President, of the way in which CVM reports whitewashed or ignored local dysfunctions.Footnote 66 Prosecutors have figured prominently also in the understanding of Bulgarian rule of law, as a result of path-dependencies, reproduced also in the configuration of the judicial council.Footnote 67 One Bulgarian Prosecutor General declared that “above him there [was] only God”. His current successor, Ivan Geshev, formally independent and practically instrumental in settling the Prime Minister’s scores with the Socialist President Radev, has presented himself verbatim as “an instrument in the hands of God”.Footnote 68 Such representations of judicial roles hardly correspond to modern rule of law ideals, nor did actual implementation correspond to the stated CVM objectives. Nonetheless, as long as Prime Minister Boyko Borisov could keep the country relatively stable, neither corruption scandals, nor allegations of abuse and graft or the lack of the CVM-required institutional framework to combat corruption appear to have mattered in the monitoring.Footnote 69 Borisov ‘reigned’ from 2009 to 2021, with brief interruptions, over centre-right coalitions dominated by his party (GERB).Footnote 70 As the discrepancies between the relative Union positions on Bulgaria and Romania show, what the Commission valued above all, in a broader scheme of things, was peripheral stability, whether achieved by anticorruption with a centre-right twist in Romania or by neoliberal political means with prosecutors in attendance (in Bulgaria). The only rational implication of the discrepancy is that neither the rule of law nor anticorruption as the rule of law were in effect paramount but rather, to use Michael Wilkinson’s portmanteau, a ‘geo-constitutional fudge’ (Wilkinson 2021, at 212 ff). The Romanian mechanism was eventually lifted abruptly by the Commission midway through the 2022 Schengen enlargement application, made by a grand-coalition government of the Social Democrats (portrayed for over a decade as the party of corruption) and national-liberals (the main centre-right party, which had in previous coalitions successfully depicted them so).Footnote 71
Anti-sleaze policies are pursued currently in the Western Balkans and the newest candidate countries of Moldova and Ukraine. Albania, flagship of the Western Balkan candidates, underwent a vetting system of its entire judiciary, to the point of being left without functional Constitutional and Supreme Courts for years. The vetting process is still unfolding but early signs raise doubts concerning the even-handedness of its implementation.Footnote 72 Systems predominating in the new candidate countries have been described as stabilocratic in nature. The question is worth posing, in the light of accumulated facts, whether RoL-anticorruption, used now selectively as a proxy for stability, can create the preconditions for Member States that can be reliably described as law-bound and democratic, rather than consolidate existing stabilocracies.
4 Center/Periphery Dynamics and Reverse Conformities
Whereas anticorruption populism remains contained at the periphery, being fused at the hip with peripheral specificities, the legal externalities of anticorruption can and do migrate to the center.Footnote 73 Once the fight against corruption became a global drive, some peripheral tendencies may drift backwards, as evidenced by the recent push towards securitization in the United States (Hogic 2023). In the common constitutional space comprising overlapping Council of Europe and EU guarantees, reverse migration is embedded in standards. General applicability is a default position, resulting from the EU post-accession formal equality of states and ECtHR needs of judicial consistency.
In soft EU law, it is revealing that one of the four pillars of the generally applicable Rule of Law Mechanism, as re-conceptualized by the Commission in 2020, is anticorruption, initially understood as a peripheral corollary of the concept. With the exception of Italy, anticorruption was neither on the political or judicial agendas of the pre-Copenhagen EU-15 member states, nor understood in legal doctrine to constitute a practical corollary or derivation of the notion.Footnote 74
The CVM floated in a soft law limbo for most of its duration, but inner-judicial polarisation led to a flurry of references towards the tail-end of this conditionality’s application. Three references dealt for instance with lower courts’ resistance to Constitutional Court decisions making dents in the effectiveness of the fight against corruption. One reference questioned CCR decisions severing, primarily on rule of law grounds, ‘securitisation’, i.e., the cooperation of anticorruption prosecutors with the domestic intelligence service, the SRI. Another challenged a constitutional decision imposing on the High Court the obligation of choosing all the members of five-judge criminal panels by lot. A third reference impugned a Constitutional Court decision which required all courts to set up specialized anticorruption panels, on penalty of constitutional nullity. The third constitutional solution was questionable (Iancu 2022) but the notion that intelligence agencies should not take part in criminal prosecution and the right to a lawful and thus impartial judge, are unproblematic from a traditional rule of law perspective. Against the grain of the AG’s recommendations, the CJEU joined these three distinct issues and adjudicated on them collectively.Footnote 75 The reasoning emphasized unidirectionally the rule of law/anticorruption nexus under the conditionality and the paramount need to ensure effectiveness in the fight against corruption (as rule of law, subsumed under the CVM, in turn justified by reference to Art. 2 TEU).
Cross-hybridization of standards has brought anticorruption before the Strasbourg Court as well. Two recent examples should suffice to illustrate tendencies analysed in Sect. 2 of the paper. Kövesi v. RomaniaFootnote 76 is a forced extension of the much more visible Baka v. HungaryFootnote 77 precedent. The judgment vindicates the rights of the demoted former DNA Chief Prosecutor to freedom of speech under Art. 10 of the Convention and free trial rights under Art. 6. The difference between the two cases, residing in a conflation of the positions of prosecutors and judges, went however largely unnoticed. This augmentation of the status of prosecutors, which already transpires into unqualified soft-law references to ‘prosecutorial independence’, goes against the grain of received practices. Many paradigmatic jurisdictions assign prosecutors to a strictly accusatorial role, sometimes subordinating them explicitly to the executive branch (Germany, Austria, the Netherlands). Few Western systems analogize the statuses of prosecutors and judges (Italy, France, Romania, Bulgaria). Those that do usually encumber the former with a wealth of qualifications (notably, France).Footnote 78
In Xhoxhaj v. Albania, the ECtHR had to decide on the conventionality of an EU anticorruption conditionality a vetting system for judges and prosecutors.Footnote 79 The vetting procedure was set up under Venice and EU Commission’s oversight, to prepare Albania for rule of law consolidation in view of future EU membership and ensure the effectiveness of the horizontally integrated Special Anti-Corruption Structure (SPAK). The vetting process includes, first, a determination by an Independent Qualification Commission, which is a sui-generis tribunal mixing prosecutorial and judicial attributions and, second, an appeal to a specially-created chamber (Special Appeals Chamber, SAC), attached to the Constitutional Court. Throughout the vetting process, the burden of proof is shifted to the individual. A negative decision results in a lifetime ban on re-entering the profession as judge or prosecutor; if a person resigns before a determination is made either way, vetting is discontinued and the ban extends for only fifteen years. In the factual context of the case, vetting (going all the way back to 1995, when she had been appointed as a judge of the Tirana District Court) resulted in the disqualification of the applicant, a former justice of the Albanian Constitutional Court. Mrs. Xhoxhaj was in essence stripped of her office as a result of her failure to declare an off-plan contract for the purchase of a 101 sqm apartment and to fully justify the purchase (she could not justify liquid assets to the tune of 15.750 EUR in Albanian Liras). Xhoxhaj argued, i.a., that her partner had gained most of those moneys while working part-time on the black market, as a student in Italy during the 1990s (as, in fact, many Albanians do and did). According to the applicant, the procedure infringed on her due process rights (Art. 6 ECHR, criminal limb) and, by effectively denying her access to the profession of a lawyer, on Art. 8 ECHR (right to private and family life). These were not unreasonable inferences, considering the lengths to which the Court had went in prior cases to protect positions of judicial (Baka) and prosecutorial (Kövesi) leadership under the civil limb of Art. 6. An earlier judgment on a Ukrainian application seemed to control the solution under Art. 8.Footnote 80 The Court found however no infringement and insisted on the fact that Albania is a sui generis case (read: the country is so corrupt that, in order for it to become European, anything goes for now).Footnote 81 By the same token, the departure from precedents is justified on principle, normatively, by filling the gaps with soft law (Venice Commission reports, EU Commission reports, GRECO reports, etc.). The applicant’s arguments (shared by a dissenting member of the ICQ and two dissenting judges) that the amounts were in context diminutive, the sanction disproportionate, and the expectations unreasonable, were for instance deflected, Van De Carr-like, by recourse to the Bangalore Principles of Judicial Conduct. According to the latter, a judge should be “above reproach in the view of a reasonable observer” in order to “reaffirm the people’s faith in the integrity of the judiciary.”Footnote 82
Two more recent judgments, Besnik Cani v. AlbaniaFootnote 83 and Sevdari v. Albania,Footnote 84 put minor jurisprudential dents in the landmark case, while raising big questions regarding the domestic process as such. The applicants were vetted and removed not only from their offices but thus also and perhaps most revealingly from positions on the High Prosecutorial Council. Both judgments find violations of Art. 6 (1) and 8, respectively, without however fully vindicating the plaintiffs.Footnote 85 Cani was stripped of his office by a panel of the SAC in which one of the judges was unfit to serve, and later convicted for forging his application documents. Sevdari was removed from office because of a trivial breach of asset disclosure rules, consisting of the failure of her husband to prove conclusively place of taxation on income he had earned abroad before they were married, before she was appointed as prosecutor.
5 Conclusion: Quick-Fix Solutions?
Corruption presented itself as an easy shorthand for describing complex patterns of peripheral underdevelopment. Posing the problem thus invited the quick-fix solution of anticorruption policies to resolve the problem and heave the periphery to the level of the centre. Corruption is a serious pathology that needs to be addressed. Paradoxically however, a single-minded focus on anticorruption, regarded as a panacea for peripheral stabilization/redemption purposes is not a solution.
Difficulties are exponentially confounded when repressive policies centred on quantifiable results are decked in the mantle of the rule of law. Unlike anticorruption, the rule of law is a normative concept that has, for the longest time, been informed at its core by liberal-constitutional representations regarding the defence of the individual against the state. Policies are by definition instrumental, result-oriented, and therefore easy to instrumentalize. This is particularly the case in systems where policies have been historically subjected to instrumentalism of various kinds and forms and where, due to deep-seated structural disincentives, normative vocabularies of liberal constitutionalism have not been internalised. The effects have been scrutinised comparatively in both conditionality-induced anticorruption environments (Romania, Bulgaria, Albania) and in the context of endogenously-driven campaigns with (Brazil) and without (Italy) international leveraging. Pathologies are comparable across case selection types, with only two noticeable distinctions. First, in the absence of an external leverage campaigns peak and lose momentum more quickly. Second, in politically unstable jurisdiction anticorruption is weaponised and acts as a both a foil and proxy shorthand for other cleavages (Romania, Brazil), further destabilizing the system, whereas in stabilocracies (Albania)Footnote 86 it appears, at least for the time being, to further entrench politically dominant factions.
In tightly integrated quasi-constitutional orders, as the EU/CoE, one could imagine in the abstract a possibility of pursuing anticorruption policies as periphery-adapted conditionalities, while at the same time restraining their dangerous potentials through rule of law monitoring. Ideally, effective anticorruption policies and normative rule of law imperatives could be reconciled and brought into accord, reaching a virtuous equilibrium. For the time being, as the record shows, this potential has not materialized, partly because, at least at the current stage of integration, such monitoring and coordination tasks outstrip the structural potential of supra- and international institutions. More recently, anticorruption has become a stabilization instrument, where local context is amenable to its usage. This explains the EU Commission’s equanimity towards Bulgaria, where in spite of a very poor record and very clear legal basis in the CVM, the Union executive adopted a laissez-faire stance. Contrariwise, the Commission offered carte blanche endorsement of Romanian anticorruption, where monitoring simply rubberstamped and legitimated the local anticorruption agenda. In both cases, the conditionality as such was lifted abruptly, even though anticorruption CPI/BPI rankings have remained more or less the same with or without anticorruption. Thus far, certain negative externalities of the conditionalities have also boomeranged as ‘reverse conditionalities’. Among these, the tendency to overemphasize prosecutorial autonomy at the expense of judicial independence proper and more generally to prioritize effectiveness across the board at the expense of rights are especially problematic.
The paper has counselled care in handling quick-fix democratization solutions, without in any way questioning that lawlessness and impunity are mortal dangerous for the rule of law and constitutional democracy. In particular, I have argued that anticorruption should be pursued in a horizon including administrative prevention and enforcement (e.g., wealth declaration transparency, procurement rules, incompatibility and conflict of interest disclosure and sanctioning, and the like) and criminal law, ex post repression. Anticorruption must be prosecuted, more precisely, as a policy framed by the rule of law, carefully balanced against normative liberal-constitutional limitations.
Notes
Vetting measures, of the kind pursued in Albania or Moldova, albeit not formally penal in nature, can be construed as such, e.g., on account of the severity of sanctions (in the case of Albania, dismissal from office, lifetime bans on practicing the profession, disqualification for an indefinite number of public positions). The ECtHR itself did not scrutinize Albanian applications under the criminal limb of Art. 6 (the three-pronged ‘Engel’ test), see Xhoxhaj v. Albania, Paras 240–246, with the rather circular arguments that the bans are not set in criminal law, thus are not criminal and that the sanction is not meant as a punishment but “aimed at ensuring and preserving trust in the public service” (Cf. however, Matyjek v. Poland, Application No. 38184/03, Judgment of 24.4.2007 (Section IV)).
Meierhenrich (2021) argues that, traditionally, state-centred (French, German, Italian, etc.) linguistic analogues of the “rule of law” conveyed different emphases. Specifically, he argues that the Rechtsstaat tradition was paternalistically-, rather than liberally-oriented, and that semantic convergence-equivalence is a post-WWII achievement under the Basic Law and hence, historically, an “aberration” in the German tradition.
Note the innumerable media and academic accolades (keynote lecture at Columbia, invited lecture at the American Society of Arts and Sciences, Financial Times list of ‘50 people who shaped the decade’, honorary doctorate at Notre Dame, invited speaker to Heidelberg, etc.) received by Sergio Moro, the hero of Brazilian anticorruption. Even after he accepted the justice ministry in Bolsonaro’s government (whose road to power he had indirectly paved), even as the Intercept leaked irrefutable proof of Moro’s bias and coaching of the prosecution, reasonable doubts were ignored, missteps rationalized.
The phrase was coined by Edmund Burke, who led in 1787 the House of Commons impeachment prosecution against Warren Hastings, for bribes taken by the latter while serving as Governor-General of Bengal. Hastings defended himself with the argument that such were the local mores. Burke countered with an argument short-handed by the phrase.
See Janse (2019), at p. 47: “Enlargement became member-state building.” Even at the nominal level, the process of accession is formally premised to have constitutive, civilizational effects: a candidate country becomes a Member State.
The United States is ranked in recent years in the category of flawed democracies, e.g., https://www.eiu.com/n/campaigns/democracy-index-2022/ (ranking docked to 27, a place below Portugal and Israel, above Slovenia and Botswana).
See Popova, (2012), for comparative statistics on indictments and convictions for agency heads. As of 2012, the first-instance conviction rate was significantly lower than for ordinary defendants (one third vs. three quarters, p. 38). If one followed the case through to the upper jurisdictional levels (reversals on appeal), the rate of convictions was however zero.
People ex rel. Dickinson v. Van De Carr—87 A.D. 386, 84 N.Y.S. 461 (App. Div. 1903).
The fight against corruption, initially placed by the Biden Administration at the forefront of US foreign policy, was declared, in June 2021, a ‘core United States national security interest’ https://www.whitehouse.gov/briefing-room/presidential-actions/2021/06/03/memorandum-on-establishing-the-fight-against-corruption-as-a-core-united-states-national-security-interest/
For example, in the Romanian case, according to an estimate of the Green Party in the European Parliament, in the absence of corruption “each [newborn Romanian] baby could receive more than 203.000 EUR” at birth.”https://www.greens-efa.eu/files/doc/docs/e46449daadbfebc325a0b408bbf5ab1d.pdf A cascade of ‘estimates of corruption costs’ are provided by international organizations, NGOs, political factions. This and related figures are in reality guesstimates (extrapolations of perceptions), often cross-referenced and recirculated within homogenous institutional settings and pools of experts. A 2014 analysis by the EU Commission floated a 5% GDP loss and specified that it was based on estimates by various organizations https://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-library/documents/policies/organized-crime-and-human-trafficking/corruption/docs/acr_2014_en.pdf Subsequently however, the figure of 120 Billion EUR per year lost to corruption in the EU (i.e., the 5% estimate measured against the real GDP) was often circulated by the Commission as a fact. According to the White House memorandum referenced above, acts of corruption sap between 2 and 5 percent of the global domestic product.
The two countries were also placed for over a decade under a sui-generis post-accession conditionality, the Cooperation and Verification Mechanism (CVM), in the economy of which anticorruption benchmarks were dominant.
Mota Prado & De Assis Machado (2021), at p. 839, opine that the debate on parliamentary immunity was a “purely Brazilian”, idiosyncratic effect. Comparative analysis shows that pressure on immunities of all kinds is general and tendential. See, for instance, the highly influential Venice Commission Report on the Scope and Lifting of Parliamentary Immunities, CDL-AD(2014)011, available at https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2014)011-e, recommending on anticorruption premises a transition from what the VC calls ‘inviolability’ to ‘non-liability’ (i.e., immunity only for votes, speeches and debates in Parliament).
Sajó and Uitz (2017), at p. 238: “At the end of the day [immunity] may be more important than punishing offenders (and innocents).”
The circumstances were certainly problematic. Greblă, a former politician appointed as a judge, was perceived as a weaker link in the court. He was arrested the day after the Constitutional Court rendered a unanimous unconstitutionality verdict (DCC 17/2015) on the Cybersecurity Law, with a detrimental impact on the-then close partner institution of the anticorruption prosecutors, the Internal Intelligence Service.
See, e.g., Moro (justifying his publication of a plea-bargaining agreement, after he had already disqualified Lula da Silva and just as the PT replacement candidate, Haddad, was rising in the polls), quoted in Mota Prado and Rodriguez Machado (2022), at pp. 276–277: “I cannot stop my work simply because there is an election in progress… Publicity and transparency are fundamental to the judiciary, and a judge cannot be the guardian of the dark political secrets of actors accused of corruption. To delay the release of the testimony until after the elections would be as inappropriate as its publicity before it.”
Among ‘Western’ democracies, only Japan has a 99% conviction rate, which can be attributed to fully idiosyncratic reasons. See Ramseyer, J. Mark, and Eric B. Rasmusen. “Why Is the Japanese Conviction Rate so High?” The Journal of Legal Studies 30, no. 1 (2001): 53–88 (arguing that prosecutors, severely understaffed, send to court only rock-solid cases, hence only about 8% of criminal files result in actual indictments).
http://www.pna.ro/comunicat.xhtml?id=12301 Politically, Romanian anticorruption has been a center-right discourse, unfolding in a specific political-systemic context where center-right Presidents (who appoint apex prosecutors) have ‘cohabitated’ with left-dominated Parliaments and thus Governments. A big-tent, ‘grand coalition’ government of the mainstream left and the mainstream right governs now, since 2021. The anticorruption discourse has been sidelined, as has it pre-2021 political-ideological flagship. Anticorruption institutions still operate, now also against the leaders of a party initially formed on an anticorruption/neoliberal center-right/socially progressive platform, the Union Save Romania (USR). Rashomon-style, this about-face can be read in a ‘stick has two ends’ key or it can be interpreted as the supreme evidence of impartial anticorruption.
A strong, partly overlapping intuition along these lines can be found in Tushnet (2019). Tushnet relies on Fuller’s 1978 article on the limits of adjudication to argue, without fully elaborating on the polycentricity claim, that anticorruption is polycentric and thus imperfectly amenable to juristic resolution. This line of argument presumes honest doctrinairism, which cannot tackle the polycentric complexities. At least in the case of Brazil, and as I argue here more generally in peripheral anticorruption settings, this is not necessarily the right presumption.
See the nuanced law-in-context piece by Vieira (2021), explaining that the Intercept-leaked discussions between Moro and Dallagnol could be and were understood as collusion in the context of a vast array of improprieties (which piled up and could no longer be explained away, especially in a changed political context). However, until the introduction in 2019 of a corrective institution in the form of the judge of guarantees, structural deficiencies made the role of a judge such as Moro, during the unfolding of the OCW, contradictory by bad design (coach, umpire, occasionally player). At. Pp. 197–198.
For a critique of Fuller, see Rubin (1989), esp. the discussion at pp. 403–409. E.g., at p. 404 “Fuller is aware that implementation (sic!) mechanism exist, as his principle of congruence indicates, but he perceives them in essentially premodern terms. His mechanism is the courts, and his public consists of unregulated individuals.”
It is rarely the case that the main protagonists of landmark criminal due process cases are sympathetic characters. E.g., Miranda v. Arizona, 384 U.S. 486 (1966). Ernesto Arturo Miranda, the namesake of the landmark Fifth Amendment case, was eventually convicted with exclusion of his testimony and died after parole, stabbed in barroom brawl.
O nosso parâmetro deve ser o crime de homicídio.
According to the authors’s argument, crusades need an independence/effectiveness nexus. Independence is ensured by way of institutional and reforms (autonomy, flattened hierarchies, tilt towards accusatorial criminal procedure). Effectiveness needs zeal and liberal use of legal (pretrial detention, plea bargaining, audacious interpretations) and para-legal instruments (e.g., strategic use of media). Eventually, the same zeal that brings results ensures loss of credibility. Given the reality of corruption in peripheral societies and the genuine needs to address it, these paradoxes can be perceived, at some level, as ‘tragic’ in nature (p. 175).
Claus Roxin himself disavowed the liberal use of his command theory, originally constructed in the context of the Eichmann trial, in the Brazilian anticorruption cases. Mota Prado, De Assis Machado, id., at p. 849 (on the so-called Mensalão, ‘monthly payments’ case).
The degree to which anticorruption-leaning public opinion is enlightened or skewed is also in question, particularly in peripheral settings. E.g., on Brazil, Campello et al. (2020).
Mota Prado and De Assis Machado 2021, at p. 845: “However, framing Lava Jato as an attempt to fight systemic corruption seems to have implicitly suggested that any criticism of Lava Jato would be driven by rent-seeking motives. This powerful discursive strategy proved divisive: one could only be in favor of Lava Jato or against it. There was no room for the idea that someone may want to fight corruption (being a potential Lava Jato ally), but not in the way proposed by Lava Jato.” See also De Sa e Silva 2020, similarly, on debates framed exclusively in Manichaean terms.
A widely-cited statistic for the interval 2010–2015 was compiled by a practicing attorney and human rights professor at the University of Cluj. It can be accessed here https://raduchirita.com/interceptari.pdf
Je dis que quiconque tremble en ce moment est coupable ; car jamais l’innocence ne redoute la surveillance publique. (On applaudit.) Maximilien de Robespierre, discours de 31 mars 1794. “I affirm that everyone trembling now is guilty, as innocence never fears public surveillance.” In Buchez (1837), at p. 71.
More problematic imponderables can also be identified. In Romania, appointments to high-ranking positions in the Public Ministry depend on both the president’s pen and the minister of justice’s proposal, and thus effectively on barters during cohabitation periods. Romania has a semi-presidential system with desynchronized terms, resulting in center-right presidents and center-left-dominated parliaments. A Prosecutor General, formally the Chief Prosecutor’s superior, was for example indicted by the DNA led by Chief Prosecutor Kövesi, just as he was applying for a second term at the helm of the Public Ministry (as was she). The charge was an alleged abuse of office (he commuted to Bucharest from his home town and used a police escort car to travel faster). As a result of the case being opened, he was effectively removed from office and in the event acquitted years later. Here as well the impression was one of political proxy wars, via settling scores at the apex of the Public Ministry.
The institutional prototypes are the independent commissions created in Singapore (Corrupt Practices Investigation Bureau, established in 1952) and Hong Kong (Independent Commission Against Corruption, in 1974).
See Tănăsescu (2018), arguing that the DNA is an independent ‘integrity agency’, albeit formally tabulated as a part (‘directorate’) of the General Prosecutor’s Office. The General Prosecutor, although formally the superior, has no leverage over the head of the anticorruption watchdog.
DNA prosecutes only high- or medium-level corruption, as defined by the quality of the defendant (long list of officials in Law 78/2000, from MPs and magistrates, to policemen, county councillors, etc.; members of the bar are also included), the value of the damage to the state resulting from the corrupt act (over 200.000 EUR) or the value of the bribe or benefits derived from the corrupt act (over 10.000 EUR). The criteria are alternative.
Only one active politician in the Council (the justice minister) sits by right. The Senate politically selects two lay members as ‘representatives of the civil society’. The civil society representatives cannot, by constitutional stricture, vote in the two sections (prosecutors and judges, respectively), where the crucial career decisions are made, including first-instance decisions on disciplinary actions.
The Romanian Judges’ Forum Association, Forumul Judecătorilor, AFJR, is the most active defender of anticorruption as RoL, duplicating the current stance of USR (Union Save Romania, a party created on an anti-graft platform). Other associations, UNJR (Union of National Judges) or AMR (Association of Romanian Magistrates) have taken consistently anti-anticorruption positions (emphasizing rights, the superordinate position of the judge over that of the prosecutor, criticizing cooperation agreements with the domestic intelligence services). These positions replicate in subdued form the standpoints of the Social-Democratic Party, the Hungarian minority party and nowadays also, partly, of the mainstream center-right National Liberals.
It is scientifically impossible, failing Intercept-style leaks, to prove ex ante ideological or party bias. A number of prominent anticorruption magistrates eventually went into politics, starting with Antonio Di Pietro in Italy all the way to the recent forays into Brazilian politics and government by former prosecutor Deltan Dallagnol and former investigating judge Sergio Moro. The latter was minister in Jair Bolsonaro’s government and later failed presidential candidate. His votes likely accrued to Bolsonaro in the second-round ballot https://www.transparency.org/en/press/brazil-elections-endorsement-president-bolsonaro-prominent-operation-carwash-players-under-anti-corruption-misleading
The initial Romanian hero, Daniel Morar, later became a Constitutional Court judge. In his new capacity he was instrumental in a series of majority decisions which, on rule of law grounds, curbed RoL anticorruption. He was consequently subjected by the updated anticorruption camp to vilification and/or a form of damnatio memoriae (as traitor to the cause). After the completion of his CCR term, Morar authored an (in)famous 800-page volume (Morar 2022), published with a high-brow Bucharest press, part auto-hagiography, part philippic against what he portrays as the subsequent capture and diversion of anticorruption by his successor, Laura Kövesi, and her alleged political and intelligence services allies.
To the point where a Brazilian Supreme Court justice referred to the Lava Jato prosecutors and investigating judges as the ‘Republic of Curitiba’ (Mészáros 2020).
See Guarnieri and Pederzoli (2002), p. 193, for an early identification of this trend and of its perils: “Confusion between prosecution and judicial functions should be avoided, and prosecution powers need to have some clear checks over them to protect individual freedoms.”
CDL-AD (2010)040 Report on European Standards as regards the Independence of the Judicial System: Part II—the Prosecution Service—Adopted by the Venice Commission—at its 85th plenary session (Venice, 17–18 December 2010) (Para 86): The ‘independence’ of prosecutors is not of the same nature as the independence of judges. While there is a general tendency to provide for more independence of the prosecution system, there is no common standard that would call for it.
COM/2007/0378 final, at https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:52007DC0378
Quoted in Mota Prado, De Assis Machado (2021). The same judge made in 2021 an about-face to strategic normativity, casting the tie-breaking vote to quash Lula Da Silva’s convictions, on grounds of lack of impartiality: “In this case what is discussed is something that for me is key: everyone has the right to a fair trial, due legal process, and the impartiality of the judge” at https://apnews.com/article/brazil-trials-sergio-courts-02b1ceceb6426ebf19c6c0fbd374fa75
The video recording can be accessed here, allocution starting at 56.35 https://www.juridice.ro/311780/bilantul-de-activitate-al-dna-pentru-2013.html
The reform initially consisted in a centralized unit, similar to the DNA but selected entirely by the Council, without any political input (SIOJ, Section for the Investigation of Offences Committed within the Judiciary, SIIJ in the Romanian acronym), which was eventually scrapped and replaced by a decentralized functional equivalent (designated prosecutors at the level of the General Prosecutors’ Office and offices attached to the Courts of Appeal, respectively).
CSM Plenum Decision 225/15 October 2019, at http://old.csm1909.ro/csm/linkuri/08_01_2020__97031_ro.pdf
DCC No. 26/2019.
DCC No. 51/2016. The issue is confounded also by the fact that, until the CCR forbade the practice by voiding for vagueness an article of the Criminal Procedure Code, all surveillance warrants were legally executed by the SRI, including the transcription of the recordings that went as evidence before the judge.
Mendelski (2021). 2021 marked, for the first time in years, a decrease by 0,48% in the budgetary allocation, compensated however by an increase of 14% in commitment appropriations. See, on the facts and mysteries of collaboration of anticorruption prosecutors with the domestic intelligence service, Iancu 2021.
Note the extent to which vast arrays/tranches of actions that could have been understood as electoral/political corruption were recast as freedom of speech as a result of the Citizens United decision, Citizens United v. FEC, 558 U.S. 310 (2010).
See Cristian Ghinea (2012) Eu votez DNA! De ce merită să apărăm instituțiile anticorupție, Bucharest:Humanitas. The book [I Vote for the DNA!], a collection of interviews with anticorruption warriors, served as a manifesto for the center-right anticorruption camp. One of the interviewees, prominent anticorruption activist, makes, for instance, the following assertion: “If I look around me, this kind of reasoning- I choose not to pay bribes and to go to the private sector for healthcare, schools, kindergarten, I choose not to pay bribes there where I can- is more common now than in 2001.” At p. 165 The forma mentis of this answer reflects a general trend against public sector solutions (presumptively corrupt) and for private substitutes (presumptively clean, impliedly affordable, etc.). On the location of anticorruption policy fads within wider contemporary, international rule of law ideologies, i.e., associated with austerity and privatisation, see Humphreys (2011).
Sajó A. (2003), p. 172: “Political (electoral and judicial) competition is about the successful imposition of corruption labels and, at the same time, about normalizing corrupt practices.”
https://www.dw.com/en/brazils-lula-da-silva-the-communist-who-wasnt/a-64240797. See João Guilherme Bastos dos Santos and Esther Solano Gallego, supra, on intersections and overlaps between Lavajatismo and Bolsonarismo.
These are in essence rudimentary discursive clichés, used to get immediate results. The Romanian diaspora, just as the Romanian society in the home country, is diverse and not necessarily tolerant and enlightened. AUR campaigned online and by direct canvassing, on a nationalist, ultraconservative platform and fetched 23,3% of the diaspora vote, ranking first in Italy, second in Spain, where sizable Romanian expat communities reside https://prezenta.roaep.ro/parlamentare06122020/abroad-pv-final Inland, the percentage was much lower, 9,17% https://prezenta.roaep.ro/parlamentare06122020/romania-pv-final
Brazilian dictator Getúlio Vargas is apocryphally credited to have summed up this penchant: “For my friends, everything; for my enemies, the (rule of) law.” A Romanian interwar prime minister, Gh. Tătărescu, similarly described in his youthful doctoral dissertation how a refractory voter, namely, a voter who refused to cast a ballot for the ‘governmental candidate’, received a ‘solid civic education’ simply by way of the fact that all state offices, from gendarme to the veterinary inspector, promptly imposed the law to the letter, on him alone.
As Minister of Justice and Public Safety in Bolsonaro’s cabinet Moro defended a ‘public order’ package that would have, inter alia, shielded from homicide charges officers acting under ‘fear, surprise, or strong emotion’ as “rule of law”: “This is not authoritarianism, this is not fascism. It is the rule of law.” ("…isso não é autoritarismo, não é fascismo. É rule of law). Press statement of 4th of February 2019, at https://exame.com/brasil/nao-e-fascismo-e-rule-of-law-os-6-pontos-centrais-da-coletiva-de-moro/
SEC (2001) 1753, available at http://aei.pitt.edu/44603/1/romania_2001.pdf (pre-accession monitoring report for 2001): Of particular concern are provisions in the Penal Code that restrict the activities of journalists. The articles dealing with slander and libel are restrictive and the extensive use of legal proceedings against journalists, in particular where they have made allegations of corruption, undermines the freedom of the press. (emphasis supplied).
Legea 278/2006 pentru modificarea și completarea Codului penal, explanatory statement (expunere de motive) available at http://www.cdep.ro/proiecte/2006/000/20/4/em24.pdf
DCC 62/2007, DCC 206/2013.
Iancu (Alexandra Alina) (2018).
Report from the Commission to the European Parliament and the Council on Progress in Romania under the Co-operation and Verification Mechanism of 27 January 2016, COM (2016), pp. 3–4 and 16.
2020 Rule of Law Report, country chapter on Romania, SWD(2020) 322 final https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52020SC0322&from=EN
The Criminal Code was not revised in 2014 and a new Criminal Code entered into force. The Code was adopted in 2009 (Law 286/2009 on the Criminal Code) and its adoption was a EU post-accession conditionality under the Commission’s supervision, according to the CVM decision 2006/928/EC (Annex, Benchmark 1).
But cf. Janse, supra, at p. 56, using the Romanian Regular Reports of 2001, 2002, 2003. In the author’s reading, requests made to national authorities to decriminalize libel and slander constitute strong evidence of an institutional pattern of consistency and credibility in the implementation of the rule of law. Diachronically, the right to freedom of the press and political expression was however demonstrably approached in a purely consequentialist key.
Stoychev, Simeon: This is how Bulgarian Judicial Independence Ends…Not with a Bang but a Whimper: New Reforms Labelled as Implementation of EU Recommendations Endanger Judicial Independence in Bulgaria, VerfBlog, 2019/6/03, https://verfassungsblog.de/this-is-how-bulgarian-judicial-independence-ends-not-with-a-bang-but-a-whimper/, https://doi.org/10.17176/20190603-235634-0.
The Bulgarian council is dominated by prosecutors (4 elected and the Prosecutor General ex officio) and political appointees (11). These two groups and the ‘investigating magistrate’ vote in contentious issues consistently against the judges (six elected, the President of the Supreme Court of Cassation and the President of the Supreme Administrative Court) as a disciplined bloc. “The key threats to judicial independence …emanate from within the judiciary, from the prosecutors and particularly the chief prosecutor.” Schönfelder (2005), at p. 65. The author emphasizes the imbalances in power between prosecutors and judges, to the benefit of the former; according to him, the pre-accession, negotiated changes had rather reinforced the problem (at p. 73). Little seems to have changed under the CVM.
Teodora Petrova: The General Prosecutor Unbound: The recent raiding of the President’s office shows how vulnerable the rule of law in Bulgaria is, VerfBlog, 2020/7/12, https://verfassungsblog.de/the-general-prosecutor-unbound/, https://doi.org/10.17176/20200712-235220-0.
See Avbelj (2015), on selective degrees of attention in EU/Western narratives about democratisation in the East-Central Europe, at p.290: “What was really going on and the actual existing quality of the social capital on which the new liberal democratic frame was attached in these countries was of little concern, as long as the external interests were not threatened.”
https://ec.europa.eu/eurostat/databrowser/view/tessi190/default/table?lang=en During this time, Bulgaria’s inequality index increased steadily. It is now by far the highest in the Union (38.4 in 2022).
Formally, the CVM was lifted for both countries on September 15, 2023. https://ec.europa.eu/commission/presscorner/detail/en/IP_23_4456 (practically, monitoring was discontinued for Bulgaria in 2019, for Romania in 2022).
https://euronews.al/en/albanian-opposition-accuses-assembly-deputy-speaker-of-influencing-justice/See Hoxhaj (2021) at p. 165: “The governments in the Western Balkans have been described as ‘stabilocracies’ (…) and the leaders of the government can be understood as autocrats that capture the state, and claim to secure stability in the Western Balkans region pretending to champion European integration.”.
Neves (2006), at p. 266: “Asymmetrical developments of the modern world society, divided into center and periphery, are subject to relativization under current conditions. The question is worth posing, whether the current challenges of globalization do not determine a situation whereby problems of exclusion and poor differentiation between law and politics, until now typical for states at the periphery of modernity, will not migrate and spread to states of the civilizational core.” (Unless otherwise indicated, translations are mine.) Neves’ intuition, perhaps no longer applicable wholesale to the world as such, is certainly apposite “in micro” and other things equal, to the European constitutional area.
CJEU, Euro Box Promotions and Others, Joined Cases C-357/19, C-379/19, C-547/19, C-811/19 and C-840/19, Judgment of 21 December 2021. ECLI:EU:C:2021:1034.
ECtHR, 5 May 2020, No. 3594/19, Kövesi v Romania.
ECtHR, 23 June 2016, No. 20261/12, Baka v Hungary.
Notably, unlike in the case of judges, the French CSM opinion (favourable/unfavourable) is advisory as regards prosecutorial appointments. In practice, ministers usually yield but, conversely, negative opinions are rare.
Xhoxhaj v. Albania, Application no. 15227/19, ECHR 2021.
Oleksandr Volkov v. Ukraine, Application no. 21722/11, ECHR 2013.
Xhoxhaj v. Albania, Paras 299, 412. One could turn the question easily around and ask how will the country become European with policies that leave its Supreme Court and Constitutional Court fully unfunctional for years on end and thus at the mercy of the executive. One could also wonder why the anticorruption institutions should be trusted with a blank cheque if they operate in systems that are presumptively rotten to the core.
Para 407.
Application no. 37474/20. Judgment (Third Chamber) of 4 October 2022.
Application no. 40662/19. Judgment (Third Chamber) of 13 December 2022.
The ECtHR is not a court of record and cannot decree reinstatement sua sponte. It can however spell its position more or less forcefully.
China is the perfect example of weaponization of anticorruption for political stabilisation and control purposes, Pei (2018). It was not included in the comparative pool for obvious reasons. In spite of the inclusion in its constitution, after 1999, of lip-service adherence to an idiosyncratic definitional fad (Art. 5 (1), socialist republic under the rule of law), the system does not profess to respect, even at the façade level, basic tenets of the Western rule of law tradition.
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Acknowledgements
An advanced form of this argument was presented in the 2023 ROLPERIPHERAL (Exploratory Research PN-III-P4-PCE-2021-0319) annual conference. The event was held in Timișoara, at the West University’ Faculty of Law and co-organised with New Europe College in Bucharest. I wish to thank the conference participants for their attention and feedback. I owe a particular debt of gratitude to Armin von Bogdandy, Alexandra Alina Iancu, and Mariana Mota Prado, for challenging exchanges and surgically precise comments on various draft versions. Errors are, naturally, mine.
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Iancu, B. Quick Fix Solutions-Anticorruption as Core/Peripheral Modality of the ‘Rule of Law’. Hague J Rule Law (2024). https://doi.org/10.1007/s40803-024-00220-9
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DOI: https://doi.org/10.1007/s40803-024-00220-9