To Strengthen the Rule of Law, Protect the Independence of Prosecutors
By Maïté De Rue
As chief prosecutor of Romania's National Anticorruption Directorate (DNA) Laura Codruţa Kövesi achieved dramatic results in a country long blighted by institutional corruption. Under her leadership, the DNA launched successful prosecutions against hundreds of people, including local and national politicians. Those convicted also included Liviu Dragnea, a senior government minister who was given a suspended sentence for electoral fraud in 2015.
Dragnea still managed to emerge as the most powerful politician in Romania. While barred from the prime minister’s office by his felony conviction, he became head of the governing Social Democratic Party (PSD), and president of the lower house of the national legislature. There he spearheaded a bid to push back against the anticorruption campaign.
The resulting lengthy political struggle eventually sparked large-scale public protests against Dragnea and the PSD in 2018. Dragnea himself was eventually convicted on new corruption charges, and in May this year, he went to prison with a three-and-a-half year prison sentence.
But along the way, Kövesi also lost her position at the DNA. In early 2018, a government department was set up to investigate supposed prosecutorial misconduct—a move characterized as a threat to judicial independence by the Venice Commission of the Council of Europe. Then in July, 2018, Kövesi was sacked by the Justice Minister, Tudorel Toader, despite objections from President Klaus Iohannis, and from the body tasked by the constitution with guaranteeing judicial and prosecutorial independence.
Kövesi has now challenged her dismissal before the European Court for Human Rights—in a case that highlights the vital role of prosecutorial independence in defending democratic freedoms and the rule of law.
In her application, filed in December last year, Kövesi asserts that she was unable to challenge her dismissal before a court in Romania, invoking a violation of article 6 (right to a fair trial) and article 13 (access to a remedy) of the European Convention on Human Rights.
In a reflection of the importance of this case, the Justice Initiative has sought, and been granted, permission to support her case by submitting observations as a third party, drawing on our legal expertise on prevailing international standards on the issue of prosecutorial independence.
Building on international and regional standards, the Justice Initiative’s intervention sets out the four types of guarantees under the European Convention that should guide the dismissal of a chief prosecutor in order to secure their independence.
• First, alleged reasons for the removal should be communicated clearly and effectively to the prosecutor concerned and should be examined objectively.
• Second, the prosecutor should have the right to be heard in an adversarial proceedings.
• Third, disciplinary authority must act independentlywithout interference of other branches or organs of government.
• Fourth, the prosecutor should have the right to challenge – including in court – all decisions concerning their career, including those resulting from disciplinary proceedings.
These standards create a clear framework for any dismissal process of a chief prosecutor and mitigate the risk of political interference and purely political decisions. Applying these criteria can help to assure that decisions are taken in the best interest of the public rather than to protect personal interests.
A lot remains to be done in the field of prosecutorial independence in many regions of the world. Securing the independence of the chief prosecutors is a first important step. Too often prosecutorial appointments reflect politics over merit, and are done though closed-door deals rather than a transparent and public process.
Beyond appointment and dismissal processes, further guarantees should also be reinforced including: equipping prosecution services with clear policies that set priorities in their work; regulating the conditions under which hierarchical power can be exercised in individual files; ensuring organizational autonomy in terms of budgets, hiring decisions, allocation and management of cases, etc.
In addition to be independent, prosecution services must also be accountable for their actions. The concept of accountability is central to the idea of democratic governance based on the rule of law. One of the most challenging aspects of prosecutorial accountability arises around decisions not to prosecute: if there is no legal remedy against such decision, accountability is deficient.
A clear ruling from the European Court of Human rights could be a first step to strengthen the international standards around prosecutorial independence. It could resonate not only in the 47 countries of the Council of Europe, but far beyond, inspiring other international bodies to follow the same path. The fight against corruption, and more generally against impunity, would be significantly strengthened.