Investigating the DNA, Part 2


Word Count: 3711

After wrapping up my initial article on the subject yesterday, I continued to do some research. I was curious whether or not there was another way to investigate the DNA’s activities using statistics in an effort to penetrate the extremely mysterious way in which they achieve so many convictions. I started digging some more and realized the situation is far worse than my already pessimistic first analysis.

MCV

It’s long-forgotten history now, but at one time, Romania was not even a candidate for membership in the European Union. Unlike more recent prospective membership situations (Georgia, Ukraine, and Moldova), pretty much every politician in Romania desperately wanted to join the EU and was willing to do just about anything to make it happen. As such, all the leading politicians (including then-PSD party chief Adrian Nastase, who would later get convicted by an EU-mandated court) got together in a big summit in 1999 and agreed to adhere to the EU’s terms to do whatever was necessary for Romania to qualify as a member.

The early 2000s were boom years for the EU, with the economy growing at a substantial clip pretty much everywhere continent-wide. Most of the western European countries had already joined the EU (including Finland and Sweden, plus newly-reunited Germany). 2004 was the BIG year for the EU, in which ten different former Communist countries (including Hungary) joined the EU, so the opportunity was ripe for Romania (and Bulgaria) to be included.

The problem, from the EU’s view, was that the judicial system in Romania was horrendously corrupt and unfair. Furthermore, cronyism and corruption was rampant. Thanks to the booming economy, Romania was just barely able to qualify for EU membership on financial terms, but the judiciary and law codes were a disaster.

The solution that was developed was a unique tool called the Mechanism for Cooperation and Verification, which was created exclusively for Romania (and Bulgaria). Prior to, and immediately following joining the EU, the MCV was tasked with monitoring and advising Romania to make sure that it adhered to all EU criteria on judicial and other standards.

The original text of the MCV stated that, once Romanian was up to EU standards, the MCV would be dissolved, and Romania allowed to continue on its way just as every other EU member state. For the first few years, the MCV provided “updates” every six months, progress reports on how Romania was doing with the expectation that the MCV would soon no longer be needed.

It’s largely forgotten now, but it was specifically thanks to the MCV (and adherence to its recommendations) that Romania was allowed to join the EU on 2007. Here’s a quote from an old Economist piece from March 2007 when then-PM Calin Popescu Tariceanu dissolved the government:

The breaking point came this week when the Liberals [CPT’s party] said they would stay in the coalition only if the government pulled troops out of Iraq, and dumped three ministers, including the non-party justice minister, Monica Macovei. When the Democrats [Basescu’s party] refused to agree, Mr Tariceanu pronounced the government “dead” and started work on forming a new minority administration with the Hungarians. He is hoping for tacit backing from the ex-communist Social Democrats.
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The outcome is unlikely to be a government burning with reforming zeal. It was only by sidelining the sleazy Social Democrats [PSD – the political party of Adrian Nastase and Victor Ponta] that Romania managed to get its EU membership application back on track. Ms Macovei’s efforts to reform the legal system, reduce political interference and end corruption were vital in persuading Brussels that Romania was serious about modernising its state bureaucracy.

Macovei was the Justice Minister from 2004-2007 and has largely been sidelined from domestic politics in Romania ever since. But she’s remained an active MEP (member of the European Parliament), and has definitely been the “captain” of America’s “pick-up team” of judicial reformers. And, as you can see from the quote, Romania just barely managed to pass muster (MCV norms) in order to join the EU.

Fast forward a few years and the expectation everywhere was that judicial reforms (especially a big wave of changes in 2008) were going to earn Romania a “passing mark” and thus the end of MCV monitoring.

This didn’t happen. In fact, the MCV continues today, almost 10 years since it was created, and the new (now yearly) report is scheduled to be released next week, with plenty of continuing criticism and even more recommendations for reforming Romania’s horrific judicial system.

The DNA to the Rescue

The DNA was created in 2003 (as a prerequisite for joining the EU) but did very little in its early years, mostly catching low-level bureaucrats taking small bribes.

That all changed in 2008 with the appointment of Daniel Morar as the DNA chief. As we know now from Wikileaks, Macovei and the U.S. Embassy were busy with their “pick-up team” of judicial reformers, working to drastically change the Romanian judiciary and “overhaul” the various sectors of Romanian law.

This largely all failed due to the colossal stupidity (see the movie/book The Big Short for more details) that led to the financial meltdown of late 2007 and early 2008 in the United States, now just called criza (the financial crisis). As I wrote way back in 2012, the Romanian economy took a nosedive in 2009, partly due to colossally wrong predictions from the “wise old elves” of the IMF and World Bank.

Tariceanu, as well, ended up crashing the government after raising salaries for a number of different sectors of government employees, including teachers and magistrates (judges and prosecutors). Emil Boc (an ally of both Basescu and Macovei) stepped in as PM and, together with Daniel Morar at the DNA and Kovesi as chief prosecutor, the American government was very happy for a while.

A commenter reminded me of an article I wrote in 2012 called You Get What You Pay For, wherein the American Ambassador to Romania got angry and let slip an incautious remarks about how the United States had paid for the DNA and wanted to see a return on its investment. We know from Wikileaks that the United States had begun training DNA investigators and supplying “technical support” to the agency around the time Morar came to be the head of the DNA.

Kovesi managed to break a number of minor laws to keep Morar in office as head of the DNA until 2013, when she herself moved over to take the job (with Morar getting bumped up to a position as a judge on the Constitutional Court, the highest court in Romania).

Starting in 2008 under Morar, and continuing under Kovesi, DNA conviction rates began to skyrocket. 97 people were convicted in 2008, 131 in 2009, 154 in 2010, 298 in 2011, 863 in 2012, 1220 in 2013, and 1,138 in 2014.

The DNA was severely hamstrung and criticized by various political factions throughout this time but was continually rescued by Morar-Kovesi-Basescu with much loving praise from the folks at the MCV and the United States. Indeed, if you read through old MCV reports, you’ll see that the DNA’s activities were one of the few highlights, in contrast to continuous infringements of the law (especially in 2012 during the height of Ponta’s coup).

But for most Romanian politicians, the DNA was a bugbear, and year after year they either criticized the MCV reports or dismissed them as irrelevant or an unwarranted “interference” by outsiders from the European Union.

Crunching the Numbers

In my initial piece, I described just how opaque the DNA prosecution process actually is. From the outside, all we ever see is an anonymous prosecutor from the DNA charge someone with a crime and then later we see an anonymous judge convict the individual. That’s why I decided to see if statistics could reveal more information about this process.

In November 2015, the Guardian wrote a hagiographic article about DNA Chief Laura Codruta Kovesi (being extra sure to include the diacritics in her name):

Last year the agency successfully prosecuted 24 mayors, five MPs, two ex-ministers and a former prime minister, not to mention more than 1,000 other individuals, including judges and prosecutors, with a conviction rate above 90%.

Above 90%? That’s not a number, that’s an estimate. Oddly, the DNA’s website doesn’t compute their own conviction rate. So what is the actual number then? Only by digging through old MCV reports was I able to find the hard numbers, but it wasn’t in the annual MCV report. Before the final yearly report is published by the MCV, there are a number of preliminary documents prepared called “working documents”. Here’s one from January 2015 (PDF), at the bottom of which you’ll find:

DNA has secured convictions in a high proportion of cases (the acquittal rate is 7.9% for DNA cases).

That means the DNA is successfully getting a conviction in 91.9% of its cases. Woah!

To give you an idea of how unusual this is, in Great Britain, the Crown Prosecution has a conviction rate of about 80%. Over in America, federal prosecutors do better (about 90% on average) but it must be understood that Romanian law is far different than either in the UK or the USA. Recent changes to Romanian law in 2015 introduced the idea of a plea bargain, which are how the vast majority of UK/USA cases are settled, but that has yet to take effect for DNA cases and is a brand-new concept in Romania.

This means that 91.9% of the time, the DNA charges an individual with a crime, the case goes to trial, the defendant attempts to defend him/herself, and then gets convicted anyway. Astonishing!

Even more amazing is the fact that some of the tiny 7.9% of cases that ended in acquittal were the result of parliament changing the law to retroactively de-criminalize certain acts, thus resulting in a technical acquittal. It also includes a handful of cases (3 in 2014) in which the defendant was technically acquitted but the court ruled that they must pay a fine. This means that the conviction rate is actually even higher than 91.9%.

Throughout Europe, the average acquittal rate is about 15% (or 85% conviction), and numbers rarely drop below 10% except for in countries like North Korea or strange situations (as in Japan).

The World Bank wrote an extensive report on how odd the situation is in early 2013, which was widely quoted in the Romanian press at the time. But the original report, hosted on the Romanian Justice Ministry’s website, has been erased. Luckily, the internet is smarter than the Romanian government, so you can still read it (in Romanian) for yourself.

It’s a pretty damning report, blasting Romania’s judiciary for still relying on paper documents despite the fact that it has an in-house computer system called ECRIS (that only lawyers and judges can access). Several MCV reports have criticized the ECRIS system as being very slow and difficult to search, not to mention that it doesn’t contain items like transcripts and evidence used in the trial.

Again though, the one “bright spot” in the World Bank’s report is the DNA. On page 88 (my translation):

The DNA has progressed the most in terms of charging individuals and achieving convictions. In the period of 2006-2011, the number of investigations, individuals charged, and convictions against all sectors of the public show a significant increase.

Here’s another fun quote from the report (page 93), referring to why judges in Romania constantly hand down conflicting and confusing sentences with no apparent logic or consistency (my translation):

With the exception of EU representatives (CMV), local scholars and experts from NGOs, including foreign lawyers (who handle cases for the Chamber of Commerce), not one person that we interviewed would clearly answer the question directly. Furthermore, in many cases it was unclear whether the person we interviewed thought the problem was related to corruption or legitimate differences in how judges applied the law.

Yikes.

But the relevant section concerning the DNA’s conviction rate comes from page 55 (again, my translation):

We must now discuss the extremely high conviction rate obtained by prosecutors (between 90-95%). This rare is rarely matched in other countries, and when it happens [in Romania], it raises suspicions that one of two things are happening – either significant acts of corruption or prosecutors avoiding politically risky cases. We believe that Romania is doing the latter, that prosecutors are so focused on obtaining near-perfect conviction rates that they don’t take on cases for which they don’t think they can get an easy conviction. It is assumed that the prosecutors behave this way due to pressure from public opinion, and reading [press reports] from the President [Basescu], who has stated that any prosecutor who can’t obtain a conviction in a corruption case should retire.
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Nonetheless, this practice [of very high conviction rates] raises significant questions. We consider that, in line with best practices, prosecutors should take on greater risks and understand that a conviction rate of 75% of better is perfectly acceptable. Sometimes, a very high conviction rate is an indication of serious problems, and a prosecutor with a conviction rate of 95%, as well as a court that operates at near 100% efficiency (as some do in Romania) raises the issue of how these numbers are being calculated.

Clearly, tremendous pressure is being placed on the system to churn out a hell of a lot of convictions when it comes to corruption cases.

Juking the Stats

Back in the 90s, a groundbreaking HBO show introduced the public to a term called juking the stats, more literally translated as “manipulating statistics in order to achieve a specific result”.

It’s a huge problem, not just in Romania, as manipulating numbers can lead to some very interesting benefits for government officials and agencies. In The Wire, manipulating crime statistics led to certain police officers getting promotions. In Romania’s case, an absurdly high level of DNA convictions is the preferred method of choice to get the MCV (and the rest of the world) to conclude that Romania is making progress on the anti-corruption front.

From the official MCV report from January 2015 (PDF), the last one available:

In recent years, MCV reports have found it difficult to identify a track record in tackling cases of corruption in society at large. However, 2014 saw some signs of progress. The Public Ministry has taken a number of concrete steps to improve the results of the prosecution in this area.
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The Commission’s 2014 MCV report was able to highlight a number of areas of progress, some of which showed a resilience which indicated signs of sustainability. This trend has continued over the past year. The action taken by the key judicial and integrity institutions to address high-level corruption has maintained an impressive momentum, and has carried through into increased confidence amongst Romanians about the judiciary in general, and the anti-corruption prosecution in particular.

The average Romanian might wonder why getting out from under the MCV is so important. But the leadership of the country knows very well just how important all this is.

Just last week, “technocrat” PM Dacian Colos was in France to shore up support for Romania’s entry into the (disintegrating) Schengen Zone. Thanks to a number of recent bilateral agreements (which I won’t get into here), France is strongly supporting Romania’s accession. But other countries aren’t, and for good reason:

Indeed, Romania, which joined the bloc in 2007, and has the second largest land border of all the member states, has fulfilled the criteria to join Schengen since 2010. But its fellow EU countries have blocked any attempts to further proceedings on political grounds. The reluctance of the other member states to admit Romania can partly be explained by the fact that Bucharest still receives aid from the European Commission through the Cooperation and Verification Mechanism, in order so that reforms to the judicial system can be carried out and so that corruption can be tackled more effectively.

Now we can begin to see exactly why an absurdly high conviction rate is so important to the Romanian leadership. Getting out from under the MCV does more than just let people (and goods) travel freely throughout the EU, it also “stimulates investment” and will have many other political and financial benefits.

Thus, it’s been a full court press since 2008 to juke the stats to get a lot of corruption convictions by any means necessary.

Don’t Say Securitate!

After seeing just how often the SRI (Romania’s successor to the Securitate) was involved in DNA cases, I wondered if I could calculate just how much help they were giving the DNA.

Luckily, instead of me engaging in a laborious mission of tabulating press releases from the DNA to find this information, Laura Kovesi gave us this information (in Romanian) back in 2014.

My translation:

Chief prosecutor of the DNA, Laura Codruta Kovesi, declared that in 2014 only 17% of DNA cases were based on information gleaned from the media, including journalistic investigations, or from intelligence agencies.

She then went on to say that in 2010, 19% of cases were based on SRI information or “media reports”. Regardless of whether you think SRI involvement is good or bad, that’s between 1 in 5 and 1 in 6 cases where a secret intelligence agency with a classified budget is being used to provide evidence to the DNA.

Over in America, the FBI is roughly the equivalent to the SRI, in the sense that it too can wiretap phones and provide evidence in federal cases of corruption. But the FBI’s budget is public, and its agents are named in public records when there’s a trial (or conviction). The SRI meanwhile is a secret organization, with a classified budget, and nobody in Romania who is convicted by the DNA using SRI evidence is allowed to know the name of the SRI agent(s) who were involved. It’s the equivalent of MI5 being used to regularly prosecute citizens in Britain, which would cause a political firestorm.

It’s also rather disingenuous to say that 17-19% of cases involve the SRI or journalistic investigations. One is a shadowy intelligence agency and the other is public information being aired by journalists using their real names.

Kovesi’s statements in 2014 about SRI statistics came from a a conference she was attending entitled “Anti-Corruption Sustainability in Romania”, organized by a number of multinational organizations. Here’s her concluding remarks about the high conviction rates her agency has racked up (my translation):

Is the conviction of a cabinet minister worth more than that of a mayor in terms of demonstrating that we have an efficient system in place to combat corruption? I don’t think anyone can answer that question because comparing our system to that in other countries isn’t very helpful because we have a completely different judicial system [in Romania]. No other similar institution in the EU has obtained as many convictions [as the DNA]. According to the [World Bank] study, the DNA has a conviction rate of over 90%, which is far higher than in other countries, where 75% is considered reasonable. But in the absence of precise metrics to quantify our performance, the authors of the [World Bank] study had to rely on perceptions about what is acceptable.

Nice! So don’t criticize how the sausage is made (opaque judicial system) in Romania, just accept that we’re making tasty sausage (getting convictions).

And Now For a Laugh

Reading between the lines, it’s obvious that getting positive headlines in the press and pleasing MCV monitors is a huge priority for Romania, even though the process by which this is happening is blatantly unfair.

And although the DNA keeps getting criticized by powerful politicians in Romania, it’s also worth noting that even Ponta’s ultra-sleazy government never did anything significant to dismantle it, or get rid of the Kovesi-Morar alliance. Yes, the politicians carp and complain on TV but the DNA juggernaut keeps on rolling along, even as it now has begun to negatively affect international investment in the country.

The DNA has always been America’s special pet project, but it has been sustained by a wide coalition of different political interests in Romania due to the belief that a lot of corruption convictions will lead to benefits from the EU (including admission into the Schengen Zone) and other international organizations.

People in Romania are sick of corruption and so it’s an easy “sell” to trumpet absurdly high numbers of convictions (especially involving powerful people) as proof that genuine reforms in the justice system are taking place.

But beneath all the shiny numbers on the surface, there’s an ocean of ineptitude. Even the last MCV report notes that the vast majority of convictions are suspended, meaning that the accused is technically found guilty but doesn’t serve any jail time. Furthermore, when the court does rule that a convicted person has to pay the state restitution for their theft (from corruption), it almost never happens:

Concerning asset recovery, and in particular the recovery of damages, the Romanian authorities have acknowledged that the system needs to be improved. Though one of the problems in this area is the need to improve data-gathering, the recovery rate secured by the National Agency for Fiscal Administration (ANAF) in the execution of court decisions is estimated at only 5-15% of the assets subject to a court order. This makes the sanctions less dissuasive, as well as perpetuating the loss to the victim (often the state in corruption cases) and providing another example of failure to implement court decisions.

It’s not the DNA’s responsibility to collect fines. But it is interesting that when corrupt officials are convicted, they pay only 5-15% of the money ordered for restitution, meaning that Romania is getting robbed a second time due to inaction by the ANAF (which I’ll write an entire article about later).

Mysteriously productive DNA prosecutors, continued heavy reliance on the SRI, and an astoundingly high conviction rate leads to praise from the EU/USA for all the “progress” being made. But most sentences are suspended, and convicted criminals rarely pay their court-ordered restitution and often resume positions of power afterwards.

But appearances matter more than substance, which is why even Kovesi’s opponents dare not replace her, the poverty-stricken unmarried saint who has agreed to take on the difficult task of converting judicial shit into political gold for Romania’s masters.

It is unknown what Kovesi will do when her term as DNA chief runs out. Luckily, she’s got a pretty impressive CV that includes two special awards from the United States, as well as a description of her office skills:

Sound computer knowledge in using Windows OS and Microsoft Office.

Oh my…

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