Could it have been otherwise? Subjective memoirs of a former Romanian magistrate

https://doi.org/10.63189/XVYC8931

Daniel Morar: Putea să fie altcumva. O istorie subiectivă a justiției după 1990 (It could have been otherwise. A subjective history of the justice system after 1990), Humanitas, Bucharest, 2022, 688 pages, ISBN: 978-973-50-7722-8

The book written by Daniel Morar is a reflective memoir and analysis of Romania’s justice system in the post-communist era. Morar, a key figure in Romanian justice, offers a personal narrative enriched by his experiences as a prosecutor, focusing on pivotal events and challenges faced by the post-communist judiciary. The book provides insights into the crossroads between politics, judiciary, and the re-emergence of former secret service structures, shedding light on the struggles for judicial independence and integrity.

Daniel Morar, born in 1966 in Luduş, Romania, is a prominent figure in the Romanian legal system, known for his extensive and influential career in the judiciary. Morar graduated from the Faculty of Law at the Babeș-Bolyai University in Cluj-Napoca in 1990. His legal career began immediately after graduation, when he started working as a prosecutor at the Prosecutor’s Office attached to the Târgu Mureș district court (1990–1992). Morar’s early career coincided with a tumultuous period in Romania’s history, marked by the post-communist transition and significant social unrest. One of the most notable events he witnessed was the March 1990 interethnic conflicts in Târgu Mureș. These events are described in detail in his book, where he reflects on the failures of the judicial system to adequately address the violence and hold perpetrators accountable.

From Târgu Mureș, Morar moved to the Prosecutor’s Office attached to the Cluj-Napoca district court (1992–1994), and later to the Prosecutor’s Office attached to the Cluj Tribunal (1994–1997). His career progressed as he took on more responsibilities and higher-profile cases, eventually working at the Prosecutor’s Office attached to the Cluj Court of Appeal (1997–2005). During his tenure at the Cluj Court of Appeal, Morar served as the head of the Criminal Investigation Section from 1999 to 2002. His work in criminal investigations included high-profile cases and complex legal matters. In 2005, he was appointed as the Chief Prosecutor of the National Anticorruption Prosecutor’s Office (PNA), which later became the National Anticorruption Directorate (DNA). He served in this capacity until 2012, gaining a reputation for his fight against corruption.

After completing his mandate at the DNA, Morar served as the First Deputy General Prosecutor of the Prosecutor’s Office attached to the High Court of Cassation and Justice, where he also fulfilled the duties of the General Prosecutor from October 2012 to April 2013. His career in the judiciary continued as he became a member of the Council of Governors of the International Anti-Corruption Academy (IACA) in Austria (2012–2015), an organisation operating under the United Nations.

From 2013 to 2022, Morar was a judge at the Constitutional Court of Romania. During this time, he also acted as the liaison agent for the Romanian Constitutional Court to the European Commission for Democracy through Law (Venice Commission) from 2016 to 2022.

Throughout his career, Morar has been involved in numerous significant cases and legal reforms and has been an advocate for judicial independence. His experiences and insights are extensively documented in his book, which reflects on his personal and professional journey, highlighting the challenges and successes of his career. Currently, Daniel Morar practices law as an attorney, continuing to influence the Romanian legal landscape with his experience and projects such as this compelling book.

In his book, Daniel Morar portrays a complex and often problematic relationship between the Romanian justice system and the secret services. He describes how former structures of the communist-era secret police (Securitate) re-emerged in the post-communist era, influencing and sometimes undermining the judiciary. Morar emphasises the challenges of establishing judicial independence amid these pressures and highlights incidents where the secret services played significant roles in legal and political affairs, complicating the justice system’s efforts to function transparently and autonomously.

The 1990 March interethnic conflicts are addressed within the broader context of the post-communist justice system in Romania. Morar offers an idiosyncratic history, presenting events from his perspective as a magistrate who began his career in the turbulent period immediately following the fall of communism. The book does not specifically focus on the 1990 March conflicts in detail, but includes them as part of the chaotic landscape of Romania during the early 1990s. As a prosecutor who was actively working in Târgu Mureș at the time, he reflects on the events with a combination of personal insight and professional analysis. Morar describes the conflicts as a complex mix of both spontaneous and organised elements. He highlights the spontaneous nature of the initial clashes, driven by long-standing ethnic tensions and immediate provocations. However, he also points to evidence suggesting that certain aspects of the violence were exacerbated or manipulated by external influences and groups with specific agendas. This duality is reflective of that chaotic period in Romania, where rapid political changes and social unrest created a fertile ground for both genuine grassroots movements and opportunistic interventions. The importance of these events is given by the fact that Morar discusses the reemergence of former secret service structures and their influence on post-communist Romania, particularly in the context of the 1990 March interethnic conflicts in Târgu Mureș. Morar suggests that the March 1990 conflicts were a critical moment that underscored the need for stability and control, which in turn was used to justify the reformation and legitimisation of these secret services. According to Morar, these events were not entirely spontaneous; elements within the former Securitate (the communist-era secret police) probably used the violence to create a pretext for their resurgence and continued influence in the new political landscape​.

Morar’s narrative suggests that the conflict had an organised feature, as indicated by the statements of Dan Petru, the Chief Prosecutor of the Mureș County Prosecutor’s Office at that time, who asserted that the events had nothing to do with spontaneity. The book implies that there were significant doubts about the effectiveness of the control exerted over the former Securitate officers by the new authorities. It also notes that István Haller, a member of the National Council for Combating Discrimination, stated that the events in Târgu Mureș were instigated by the former Securitate, which aimed to reestablish itself under the new name of the SRI (Romanian Intelligence Services). Haller highlighted meetings that took place before the events involving individuals who later took prominent roles in the SRI, suggesting that the violence may have been used to justify the reformation of the secret services. Haller mentioned that several people met with Virgil Măgureanu before the events, implying that Măgureanu, who later became the head of the SRI, was involved in or aware of the planning that led to these conflicts.

There have obviously been generational changes since 1990, and these services have been radically renovated. Nevertheless, this book highlights some interpretations – which, coming from a high-profile magistrate are of real interest – from the perspective of judicial independence and rule of law.

In his book, Morar explores the entangled relationship between the Romanian justice system and the secret services following the collapse of the Soviet-type dictatorship. This relationship resulted in significant manipulation and control, making the services powerful entities that few could oppose. Morar critically examines the implications of this entanglement, emphasising the need for judicial independence and transparency. He illustrates how former Securitate officers successfully integrated into the newly established secret services, thereby maintaining significant covert influence over the judiciary. Morar recounts specific high-profile cases in which the secret services intervened, protecting political and economic interests. For instance, he describes the manipulation of judicial outcomes and pressure on prosecutors and judges to conform to certain agendas. For example, he describes the pressure placed on prosecutors and judges to deliver outcomes favourable to those with connections to the secret services. This pervasive influence is depicted as a continuous challenge for a justice system striving for reform and integrity.

It is also worth recalling Morar’s views on the activities of the current European Chief Prosecutor, Laura Codruța Kövesi. She was also Chief Prosecutor of Romania’s National Anticorruption Directorate (DNA). Morar wrote that “Codruța Kövesi started well at the DNA. She continued the extensive investigations on the prosecutors’ desk and opened new major investigations, securing convictions in several important cases. Her dynamism and that of the anti-corruption prosecutors was visible. However, she involved the intelligence services in the prosecutors’ investigative and criminal work, embarking on a confused crusade. When she took over as head of the DNA she found an institution with a 90% conviction rate, and when she left the conviction rate was just over 50%, with acquittals in almost half the cases. She fired or drove the best prosecutors out of the DNA, and the results are visible.” Morar also scrutinises the establishment of the Section for Investigating Judicial Offenses (SIIJ), which was established to investigate corruption within the judiciary. He notes that this move was driven in part by a desire to curb the influence of the DNA under Laura Codruța Kövesi. The DNA had been accused of using its power to intimidate judges, and the formation of the SIIJ was seen as an experiment to create a more independent entity, on the one hand, or as another attempt to control the judiciary through a different channel, on the other hand.

In considering the issue of the SRI intercepting communications for national security purposes, it is important to examine the broader implications and potential abuses of such practices. While utilising evidence gathered by the SRI to prosecute other crimes, such as corruption, might seem straightforward and beneficial, multiple significant problems arise from this process.

Firstly, the authorisation and oversight mechanisms for SRI interceptions are critically flawed. The process by which the SRI obtains interception warrants lacks adequate scrutiny and transparency. There is a notable absence of checks to ensure that the reasons provided by the SRI for these warrants are legitimate. This absence of supervision means that there is a significant risk of abuse. Secondly, the extent of the SRI’s involvement in criminal investigations and prosecutions poses a major concern. According to the Romanian Criminal Code, the SRI should not engage in the prosecution process beyond supplying evidence. The role of the SRI is strictly limited to intelligence gathering, and its involvement in prosecutorial functions breaches the legal boundaries even in a democratic setting. Historical precedents, such as those under communist regimes, highlight the dangers of allowing intelligence agencies to overreach their mandate. Nevertheless, there have been instances where the SRI has unlawfully involved itself in criminal trials, going beyond its designated role and thereby undermining the separation of powers essential in a democratic state. The SRI’s expanded role, facilitated by protocols concluded with prosecutorial bodies or secret decisions from the Supreme Council of National Defence (CSAT), has granted it investigatory powers and a say in the outcome of cases. This overreach is unparalleled in other democratic nations, where intelligence agencies are restricted to information gathering and do not participate in the judicial process. The clear demarcation of state powers in democracies underscores the anomaly of the SRI’s practices in Romania. Morar provides a firsthand account of these abuses. He recounts his realisation of the SRI’s overreach when tasked with approving wiretapping requests. The SRI, as the primary authority for wiretapping and electronic communication monitoring, receives substantial budget allocations to enhance these capabilities. In contrast, democratic institutions like the police and prosecutors’ offices, which are legally empowered to conduct criminal investigations, do not receive equivalent funding to develop their interception tools. This funding disparity forces the judiciary to rely on the SRI for interception services, perpetuating a dependency that hinders the development of independent judicial capabilities.

When tasked with approving wiretap requests, Morar observed that the reasons provided by the SRI were superficially convincing but rarely scrutinised. Approvals were often granted without thorough examination, creating a system wherein oversight was minimal. When Morar began to deny requests based on insufficient justification, the SRI adapted by circumventing his refusals. They reassigned the targeted phone numbers to different names or cases or even labelled them as unknown to bypass the approval process. As Morar expressly states, “I began to write down the phone numbers in the interception proposals that I rejected, only to notice that some of them I found in the following days or weeks in other SRI proposals, concerning other people and other facts, attributed to someone else or with an unidentified owner. They were doing so to take advantage of the fact that the Chief Prosecutor and the designated judges had neither the task, nor the time, nor the possibility of checking these numbers and their holders in real time.”

In conclusion, while using SRI-gathered evidence to prosecute crimes such as corruption might seem advantageous, the underlying issues of oversight, legal boundaries, and institutional independence must be addressed. Ensuring that intelligence agencies like the SRI operate within their designated roles and under proper scrutiny is crucial in maintaining the integrity of democratic processes and the rule of law.

There is also a problem of balance. Morar gathered some statistical data: “Between 2004 and 2016, high court judges in Romania authorised 28,784 national security warrants, while FISA (Foreign Intelligence Surveillance Act) judges in the US approved a total of 22,617 warrants during the same period, more than 6,000 fewer than in Romania. It is a mystery how a country with a population more than 15 times the size of Romania’s, the world’s leading military and economic power, almost always embroiled in military conflicts and strategic disputes, and the victim of major terrorist attacks, applies for and obtains fewer national security warrants from its judges each year than Romania. Conversely, how is it possible that the Romanian intelligence services, through the State Prosecutor General, request, and the judges approve, so many warrants in this area when we are a stable country, not in a conflict zone, until March 2022, with no terrorists so far and no apparent enemies? The answer can only be one: this phenomenon is possible because a large proportion of these warrants have nothing to do with national security and terrorist threats, but exclusively with the desire of the secret services to place as many people as possible under surveillance who play a significant role in the Romanian state, whether they are dignitaries, civil servants or magistrates, or businessmen of certain importance.”

In addition, Morar recounts his personal encounters with the interactions between political figures and the secret services, including his observations on how these relationships shaped judicial decisions and policies. His narrative reflects the broader struggle for judicial independence against a backdrop of covert manipulation and political pressure, portraying a judiciary often caught between its mandate for impartiality and the reality of external influences.

Morar’s book is both a memoir and a critical analysis, providing valuable insights into the systemic issues faced by the Romanian justice system in its post-communist evolution. Through his firsthand experiences, he offers a forceful depiction of the complexities and challenges inherent in disentangling the judiciary from the enduring legacy of the secret services. Morar advocates for greater transparency and accountability within the judiciary to prevent undue influence and restore public trust.

Not all statements or interpretations of this admittedly subjective volume are acceptable. Nevertheless, the analyses that come from the depths of the justice system and from a high-profile magistrate should at least make not only the wider society, but also legal scholars reflect on issues how the general rule of law principle is effectively functioning.