HSE University Anti-Corruption Portal
ECtHR Considers the Dismissal of the Head of Romania’s Anti-Corruption Body Illegal

The European Court of Human Rights (ECtHR) has ruled in favour of the former Chief Prosecutor of Romanias National Anti-Corruption Directorate (Direcția Națională Anticorupție, DNA) Laura Kövesi.

Ms Kovesi was appointed to the position of the DNA Chief Prosecutor in 2013, in 2016 her contract was renewed for a second term until May 2019. However, in the beginning of 2018 Tudorel Toader, the Minister of Justice, asked for her dismissal, pointing to “acts and facts” showing alleged misbehaviour and mismanagement by Ms Kovesi. In particular, Mr Toader criticized Ms Kovesi for her “authoritarian management style”, for trying to get convictions at any price, for the higher number of defendants acquitted following DNA investigations and the higher cost of DNA investigations, and for delaying investigations in some cases.  

Despite the dissenting opinion of Romania’s President, unconvinced of the arguments of the Minister of Justice, the Constitutional Court forced him to sign the order to revoke Ms Kovesi, stressing that the prosecutors were under the authority of the Minister of Justice and the President could not block his decisions.

At the end of 2018 Ms Kovesi appealed to the ECtHR, arguing that she had been denied access to a court to contest the premature termination of her mandate. She also complained that her dismissal was politically motivated: she had expressed, in her professional capacity, a critical position concerning Romanian legislative reforms affecting the judiciary, which apparently Mr Toader and other members of the party that had come to power in 2016 and initiated those legislative changes, had not liked.

The ECtHR found that the circumstances of Ms Kovesi’s dismissal indicated that there had been a violation of the right to a fair trial (Article 6 para. 1 of the European Convention on Human Rights) and the right to freedom of expression (Article 10 of the Convention).

This incident brings us back to the importance to ensure the independence of the bodies responsible for the fight against corruption. The Romanian model in which the Chief Prosecutor is appointed and dismissed on the proposal of the Minister of Justice meanwhile the approval of the decision by the President is only a formality, creates an environment where the body that investigates corruption cases is in a subordinate position. In such a situation its head that takes any actions or decisions undesirable for the authorities and refuses to reconsider may be simply removed from the position to which they will appoint their “puppet”.

However, the issue about how to ensure the autonomy of the body that is responsible for the investigation into corruption cases turns out to be difficult to address in practical terms. If one person (or several persons related to each other, for instance, members of the Cabinet of Ministers) has the responsibility to appoint/dismiss the head of such a body, the latter is disproportionally dependent on the “opinion of the minority” and politically motivated decisions are more likely to be taken. The establishment of a collegial body, consisting of the representatives of different groups that are in power and/or political groupings, could be a possible and logical solution. For instance, it was put into practice in India. In that country, according to the law, the head of the Central Bureau of Investigation (CBI) can be removed from the position only by a high-powered committee comprising the Prime Minister, the chief of Justice and the leader of the opposition. This mechanism was created in 1997 due to a high-profile case known as the Vineet Narain judgment, when the government was accused of manipulating the progress of the investigation and attempting to protect high-level officials and politicians under money laundering proceedings. However, recent events demonstrated that the existence of such a structure did not overrule the decision that the authorities wanted to be taken: in early 2019 Alok Verma, the CBI head, was dismissed in spite of the fact that his removal had not been supported by the leader of the opposition who is a member of the high-powered committee. The dismissal was allegedly caused by the fact that shortly before that Mr Verma had filed a case against his deputy Rakesh Asthana, accusing him of having accepted a large bribe; in reality, Mr Asthana is very close to the Prime Minister who actually lobbied for his appointment in the CBI. 

Therefore, a formal creation of the mechanisms that ensure a collegial character of the decision on the appointment/dismissal of the head of the anti-corruption body is not in itself a key to their effective functioning. The specific national context, cultural, legal and administrative peculiarities of each country, as well as its political environment should be taken into consideration, among other things, when such infrastructure is being built.

The DNA was founded in 2002. It is responsible for the investigation into corruption offences if the damage caused by them has exceeded €200,000 or a sum of money exceeding €10,000/a property worth over €10,000 has been the object of a crime. Back in the years when Ms Kovesi led the DNA, it investigated into thousands of criminal cases, successfully prosecuting corrupt officials independently of their position and social status. For instance, in 2016 the brother of the former Romanian President Mircea Băsescu who had promised to ensure a positive outcome of the judicial proceedings against a crime boss in exchange of a reward was sentenced to four years in prison for soliciting a bribe and trading in influence, meanwhile in 2018 Darius Valcov, the Romanian Minister of Finance, from whom the investigators seized gold bars, half a million dollars and around 100 works of art, including Picasso, Renoir and Warhol, was sentenced to eight years for bribery and money laundering.

The European Parliament has acknowledged more than once Ms Kovesi’s high professionalism and last autumn she was appointed to the position of the head of the European Public Prosecutor’s Office, a new structure that will start to operate in the end of 2020 and will be competent to investigate crimes against the EU budget, including fraud, corruption and tax evasion.

Anti-corruption authorities

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