In Brussels Laura Kövesi will have to negotiate much more with politicians than she did in Bucharest

The Romanian expert on good governance Codru Vrabie speaks about his impressions from the first interview of Laura Kövesi as chief prosecutor of the European prosecution (EPPO), including about what we could expect from the EPPO’s activity

Vladimir Mitev

Codru Vrabie is a civic activist, trainer and consultant on good governance, transparency, responsibility, and integrity in the public sector. He has contributed to many reform measures in justice and public administration. Vrabie has BAs in legal and political sciences (Romania, Bulgaria, the USA) and MAs in administrative sciences and European affairs (Romania, the Netherlands, Spain). He has worked for various Romanian civil society organizations since 1998. In 2010, Vrabie started working with the Leaders for Justice” programme, which was replicated in 2017 by the Republic of Moldova.

This article was published on 11 May 2020 on the Romanian section of the site “The Barricade”. 

Mr. Vrabie, Laura Kövesi gave her first interview for Euractiv Slovakia, which is her first public appearance after the beginning of her work as chief prosecutor of the European prosecution office (EPPO). What observations do you have after you have read the interview?

I would start with three sentences, which are probable Chinese (or come from the Far East), although I have read them directly in English:

• If you are a hammer, all the things around you seem to be nails;
• If you look like a nail, stay away from the hammer;
• Only the nail that juts out of the surface is hit in the head.

The ejection of Laura Kövesi from the position of DNA’s head raised a lot her profile, her visibility and, of course, the support of an important part of the public in Romania towards her. But she has the reputation of a hammer. It is not very easy or natural for people to fall in admiration or to stay a lot of time in admiration to a hammer – because it has a simple functions, fulfills it, hits nails and that’s it. It doesn’t have esthetical, artistic, motivational, inspirational, or leadership value of any kind…

The news of the success of Mrs. Kövesi at ECHR (Strassbourg) was interpreted in the Romanian space as a criticism against the Constitutional Court of Romania (CCR), against former minister of justice Tudorel Toader, against the Social Democratic Party (which led campaign against Kövesi – note of the translator), and, partially, against the president Klaus Iohannis. But it wasn’t seen as adulation for Mrs. Kövesi. It was interpreted most of all as a new hit with the hammer at the direction of the regular nails.

This is all I can say about Mrs. Kövesi’s image in Romania today. My feelings is that the success at the ECHR would be used faster in Poland or the Republic of Moldova, before being used in other places. I think first of all about the judge Igor Tuleya from Poland and about the judge Domnica Manole from Moldova, but it is possible that other cases, which are less mediatised, also exist – such as those about the prosecutors in the Republic of Moldova. In their cases it looks like the issue is about the political sanctioning of the magistrates, because they have supported in the public space public policies, which oppose the majority in governance. The success of Mrs. Kövesi at ECHR demonstrates that politicians can not sanction politicly the freedom of expression of magistrates. Only when the present precedent would be reused and reconfirmed in another case, will Mrs. Kövesi start to be admired with sincerity – till then I have seen only admiration, because of opportunism.

Laura Kövesi left the impression that she fights for more juridical powers for EPPO, for a bigger budget, for more prosecutors and for power/independence in the relations with the national prosecution. What is realistic to be obtained in this fight? What could be expected from the functioning of the EPPO in the beginning?

As I said in our interview from September 2019, we will be able to see concrete results at EPPO only around 2022-2023, which is not good, given the perspective of the European elections in 2024. The intention of Mrs. Kövesi to assure the operational independence of the EPPO (including  budget, personnel, resources, communication lines, etc.) is laudable, but there is a big obstacle here and it is politic: the increased independence (with regard to politicians), which prosecutors in Romania enjoy is something unique among the prosecutions in the member-states of the EU. The Romanian constitutional arrangement is very different and even uncommon: it is not only uncommon, but also it is not sufficiently cleared at internal level after the 2018 episode (when the minister of justice Toader used the  constitutional text that prosecutors are subordinated to the minister of justice in order to force the president Klaus Iohannis to dismiss Kövesi from the head position of the anti-corruption prosecution). 

Even though it might be easier for some German politicians to understand it than for some Bulgarians, Hungarians or Poles, it would be difficult to accept that Mrs. Kövesi wants a level of independence (from poiticians), which even German prosecutors don’t have at the level of the federal provinces or on the level of the German federation. If they don’t have it at these levels, why should it exist on EU level?!? The most difficult problem would be the double command for prosecutors, working at EPPO, who will also come from the national prosecutions. It is very probable that it will be resolved only through a decision of the European Court of Justice (at Luxembourg). This expected conflict will consume time and nerves, and it will open opportunities for “European juridical journalism”, which is an insufficiently developed species.

This is where the obstacle, which I reminded of earlier, will appear: the appointment of Mrs. Kövesi took place through a political process and was complicated.The politicians played the most important role in this appointment (including politicians from the tops of the member states, not only politicians from the top of European institutions).  The same thing will be valid for the allocation of resources: at EU level the organisation and functioning of the EPPO will depend much more on the decisions of European politicians (from the top of the European Commission, the European Parliament, even the European Council and the member states), than a Romanian prosecutor would like. 

So the discussion about the hammer becomes necessary. What type of steel should it be made of, what type of handle should it have, what type of wood should the handle be made of, how long should the handle be, how often could it be repaired and who pays for reparation? Mrs. Kövesi will be forced to play politically in order to obtain much more difficult political/legislative decisions on the issues:

1. what is a nail?;
2. in what conditions could a nail be hit – only if it sticks out or in other situations as well?;
3. in what situation could the hammer hit nails, from what angle could the nails be hit – only straight or also sideways?;
4. in what hours of the day could a nail be hit, what level of noise would be acceptable for the neighbours?;
5. what happens, if the neighbour is right and if the angle of hit was wrong? what happens if what is hit is not a nail?

These discussions can last for quite a long time. It is probable that the European Court of Justice intervenes in these debates, because there will probably be conflicts of competence, litigations on definitions, etc. The most difficult moment will be when very influential politicians will realise that they resemble with nails and will start to redefine what nail means, so that they could avoid hits by hammer. We already saw that in Romania, where the nails were starting to get hit. On the EU level I think that the spectacle will be less visible, because it will take place before the first nail is hit. Mrs. Kövesi will be able to choose – to negotiate politically, silently, in order to obtain successes (then she will have to share the authorship of successes with politicians), or to communicate publicly, using the same strategy for juridic victimisation, which we saw in Romania. In this case she will probably fail (and she will save for herself the authorship of failure and the loneliness after it). 

That is how I see things now. I hope I am wrong!

To what extent does Laura Kövesi transfer unchanged her experience and philosophy from the times of DNA in Romania on European level? Is her quest for maximal independence a normal reflex for the head of a newly-established institutions or is rather a rhetorical approach, which is meant to demonstrate that we deal with a an anti-corruption champion, who “doesn’t abandon” both in Bucharest and Bruxelles (when Kövesi was dismissed from the head position of DNA in her departure speech, she urged the people, who care about anti-corruption ”not to abandon” the fight – note of the translator)?

In the interview for EurActiv I see once again that Mrs. Kövesi plays the role of a hammer, who sees only nails around. There is nothing bad in that! We need hammers, we need to hit the nails, who stick out! But Mrs. Kövesi seems to not have received yet the news that on European level is it more important to discuss with politicians (on which you depende) about how to make it that the nails doesn’t stick out – through prevention, which she never made in her career so far (not because she didn’t want, but because the positions, which she occupied didn’t allow her to do it!). If she doesn’t start doing this job, if she doesn’t learn how to do prevention and how to negotiate with politicians, she will have a very difficult life!

In a way, it is good that she starts her career in Brusselse with the need to negotiate the budget allocation and the dimensions of personnel with the politicians from the member-states. It is a good exercise! But where she enters those negotiations with force (indifferent what motives she has), she will remain without advantage and this is not good. It would be great if she receives support from an experienced negotiator, preferably a (former?) European commissioner – but not somebody such as Mr. Timmermans, who antagonised Poland in the times of the electoral campaign from the spring of 2019…

I hope that “the metaphors” with the hammer and the nails will not be taken literally. I am a trainer and I use such metaphors in order to assure that people understand what I speak about. I hope that there is nothing pejorativ or insulting in using those metaphors, even if their personification could be a bit incorrect.

There is something else – we can’t judge EPPO only in strictly juridic terms. That is why I direct your attention that until it proves its juridical merits, this institutional construction will have to be understood and evaluated politically. I would prefer an evaluation of the public policies, which is objective, long-term one (after 10 years of functioning), but I am not blind and I know that the subjective evaluation, the party politics will enter in force rapidly, maybe together with the next European elections in 2024. 

But could there be another interpretation of the informations, which Kövesi’s interview transmits?

A more cynical analyst than me could see in this interview the preparation of the terrain for the management of the future failure. In other words, in 2024, when put under pressure in the context of the campaign for European Parliament, Mrs. Kövesi could return to the words of this interview, claiming that x, y, or z are threats, which cannot be prevented and the responsibility for the failure belongs to somebody else. In American politics, this technique is called “plausible deniability”. If this hypothesis is real, it means that Mrs. Kövesi is no longer a simple hammer, who sees around it only nails, but has become an experienced politician or has a team of advisers, who know the political craft and have told her what she has to say! If this hypothesis is true, then it is important to note that the interview appeared on 8 May. A cynical analyst might suppose that the interview was arranged by the EPPO’s team. 8 May is a symbolic date, because it markes 20 years from the adoption of Law 78 – the first serious anti-corruption law in Romanian, which was adopted at a joint session of the two chambers of Parliament on 8 May 2000. 

Let’s conclude with the anti-corruption fight in Romania. Almost two years have passed since the dismissal of Kövesi. Almost one year has passed since the moment, when Liviu Dragnea – the enemy N1 of the anticorruption in its golden age, was condemned to imprisonment. What happens in Romanian anti-corruption and in the judicial system today? Is it a stalemate situation between the two chambers or is there a move in a direction – a new or an old one?

Romanian anti-corruption is in an auto-isolation in the conditions of an emergency situation, because all the people have taken the threat of coronavirus pandemic seriously. We have a new chief prosecutor in DNA – Mr. Crin Bologa, who was appointed in the end of February 2020. The times of his appointment was difficult, because the government  was dismissed and there were discussions about political problems such as snap elections or the formation of a new cabinet. As far as I know the report for the DNA’s activity is not presented yet, because of the reasons, related to the emergency condition. In the last year DNA had provisionary head. 

In other words, we don’t know the official data, we don’t know from where on Mr. Bologa takes this institution over and in what direction he is going to head it. From this political standing point, the priorities are different that corruption, anti-corruption or anti-anticorruption. This topic will be resolved only after the state of emergency is renounced and when Romanian politicians enter in the logic of the election campaign. Until then I only warn that it is possible that we could discover more situations with corruptive potential, when dubious acquisitions for medical equipment are made. I promise to return to the subject, when the discussions about the new anti-corruption strategy start, which will deal with the times until 2024 and 2025. 

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