EU Anticorruption Policy and Due Process: An Inconsistent Approach?

Advocates have been pushing for a European Union version of the Magnitsky Act for a number of years now (see, for example, here and here). Such legislation for targeted sanctions (including visa restrictions and asset freezes) against alleged human rights abusers in Russia would be much more powerful in Europe than it is in the U.S. Yet, despite support from some member states, proposals in the European Parliament have met with opposition. Much of the concern is, doubtless, geopolitical. Dependent upon Russia for oil, the EU is likely loath to instigate retaliation from its imposing neighbor (as the Magnitsky Act has). Yet, as a previous post on this blog has argued, the EU also objects to the US approach on more principled grounds: namely, the Magnitsky Act runs afoul of due process and presumption of innocence principles in the EU Charter on Fundamental Rights and the European Convention on Human Rights. However, while the EU is busy debating what the right hand should do with respect to targeted sanctions, it may have ignored the left hand’s effect on due process in anticorruption enforcement, as in reflected other areas of EU efforts against graft.

One powerful weapon in the EU’s anticorruption arsenal is the Cooperation and Verification Mechanism (CVM) – a safeguard measure that monitors the commitments of newly acceded members and considers possible suspension of EU benefits in cases of poor performance. Transparency International has expressed approval of the CVM, which currently applies to Bulgaria (for judicial reform, anticorruption, and organized crime) and Romania (for judicial reform and anticorruption). The CVM has been cited as a primary factor in the rapid growth of Romania’s anticorruption campaign. But at least one expert observer has made the case that the feverish Romanian enforcement has come at a cost: to the due process rights of the accused.

Over the past year, the Romanian National Anticorruption Directorate (DNA) has caught some big fish, including former Minister of Regional Development and Tourism Elena Udrea, Organized Crime and Terrorism Chief Prosecutor Alina Bica, and Director of the National Integrity Agency Horia Georgescu. Most recently, the DNA forced Finance Minister Darius Valcov’s resignation, placing him under investigation for a bribery scheme involving Picasso, Renoir, Warhol, and millions of euros. Romania’s campaign against graft has literally made headlines in the major international news outlets (see here, here, and here), and has met with approval from the European Commission and, reportedly, the U.S. government.

Amidst the accolades, however, Patrick Basham of the Democracy Institute has called Romania’s campaign manic, describing it as “crude populism” akin to the French revolution. He expresses concern over the courts’ 90% conviction rate, preventative arrests, abysmal prison conditions, targeting of family members, and politically motivated cases. Now, these protests sounds like what you would expect from any beneficiary of a system under attack and, indeed, Basham has encountered pushback. However, while some of his analogies go a bit far, Basham is not a member of the Romanian elite, but rather a scholar of democracy.

Thus far, Basham’s is an isolated critique. But it makes sense. Romania and Bulgaria are under tremendous pressure to reform. In the face of what has been termed “relentless EU criticism,” incentives to prosecute more and faster are unsurprising. The latest CVM report for Romania contains numerous references to speedy trials and the number of defendants convicted. The report notes Romanian efforts to streamline the appeals process and expand special investigation powers. Overall, the assessment is highly quantitative. There is brief mention of proportionality and consistency in sentencing but otherwise no mention of protection of defendants’ rights.

Concern with due process safeguards may seem controversial or besides the point in the corruption context. After all, corrupt actors hardly need additional means of evading accountability. But absent mechanisms to guard the integrity of the process, anticorruption reform will mean little. The EU has recognized the importance of these protections and, as TI has described, the CVM is an excellent anticorruption tactic. The EU is thus uniquely positioned to ensure an effective trajectory for anticorruption campaigns in countries like Romania and Bulgaria. It should do so.

Although the explicit due process violations and EU role are clearer in the case of targeted sanctions, the problem of insufficient due process protections is potentially deeper and more pervasive in the national enforcement context. They might therefore be more difficult to control in the latter. The previous post on the EU critique of the Magnitksy Act aptly quoted Geoffrey Robertson: “a process designed to deter unfair behavior by officials must itself be fair.” That statement may be a persuasive defense of the EU’s position towards targeted sanctions. But it could also serve as a rebuke against its actions vis-à-vis due process in other areas.

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