Réformer la justice dans un pays post
communiste
Editions de l’Université, Bruxelles
Ramona Coman
Université libre de Bruxelles
http://www.sciencespo.site.ulb.ac.be/fr/membres_co
man-ramona.html
Book presentation
Reforming the
judiciary in a postcommunist
democracy
the result
of a 5 years
doctoral research
at the
Université libre de
Bruxelles.
 Aim of the book/ starting point
 Theoretical assumptions/Methodology
Overview
The independence of the judiciary (judges) in Romania
between past, present and future
 First part: (pre and communist period) No hope,
white hope
 Second part: (post-communism)One step forward,
two steps back
 Conclusions/new research agenda
 The book is not the end of the story.
After the independence of the judges (2004) => what
about the independence of the public prosecutors?
In 2008, political parties are discussing about a new
institutional reform... To be studied
Starting point
 This research = started in 2004
 the academic community was interested in understanding
the process of Europeanization and the post communist
transformations
 the political agenda of the post-communist democracies was
dominated by a crucial and controversial issue, that of the
judicial reforms
In addition,
ten years after the collapse of the communism, Romania was... =>
...at the bottom of the European heap
 The Romanian economy was ranked below Namibia and Paraguay.
 The life expectancy was lower than anywhere else in Central and
Southern Europe.
 The EU listed Romania as last among the EU candidate countries and
most Eurocrats privately hoped Romania won’t join the EU for a long
time.
 The general perception was that “Romania will be a hard pill for Brussels
to swallow” and “will expose the EU to the ills of far-eastern Europe”.
In 2000 these considerations presented by Judt in the NewYork Review of Books were totally
shared by the academic community =>
A deviant case from the established
generalisation
 For twenty years, scholars and experts never tire of mentioning
Romania as a case of dismal failure
 Romania = the perfect example to speak about
 the “last transition”,
 “the most violent regime termination”,
 “the most crying violations of human rights” (Linz and Stephan),
 about a country where the civil society was still missing and the power of the
former communists was still significant.
 The main conclusion : the Romanian communism and post-
communism was peculiar
 The need to find new methodological tools to analyse such a
deviant case.
In this peculiar country, one reform proved to be long and difficult =>
Judicial reform = for a political scientist => a reform about
power and powers, power relations, institutions…
My reserach project addressed the following questions:
 Why it is “harder” for Romania?
 Why this reform is “long and difficult”?
 To what extent the study of this public policy allows to
confirm the Romanian post-communist “exceptionalism”?
 How the policy change or the policy stability in this field can
be explained?
My main objective…
…to analyse
 How, after the collapse of the communism, Romania intends to
eliminate the supervisory powers of the MJ over the judiciary
AND
 how and why a quite different institutional model is put in place in
2004?
How Romania moves form “here” to “there
 form a traditional French pre communist model (set up in 1992 by
the adoption of the law on the judicial organisation)
 to a new institutional framework (established in 2004 by the law
on the Superior Council of the Magistracy) that I consider in
between of the French tradition and the Italian institutional
configuration.
Put it briefly, the aim was to seek...
 why, ten years after the collapse of the communism, the
independence of the judiciary suddenly become
 the main problem of the Romanian democracy
 an end in itself
 the miracle solution to solve any kind of social, political and
economic problems.
 to present a comprehensive picture of this process of post-communist
transformation and adaptation to the EU pressures
 by looking at…
 How Romania responds to the EU incentives for change
 The role played the domestic and European political and social actors
In 2008 I felt that I had sufficiently plumbed my empirical data for, it
is to be hopped, an illuminating interpretation of this policy process.
An invitation...
Political scientist Kenneth Jowith: political science books “are filled
with disciplinary jargon, are historically uninformed,
unimaginative, and therefore boring”.
My book is not “historically uninformed”, it is not at all “boring” but it
contains some « disciplinary jargon »
A necessary disciplinary jargon
In political science, we cannot go beyond the canon
of our Method.
We cannot explain and understand political process
without theoretical assumptions.
How to study this constitutional public
policy...
 taking into account the warning that the Romanian post-
communism could not be analysed using the theoretical tools
developed in the Western political science
 knowing that no widely accepted paradigm exists to model the
relationship between justice, society and politics
 and that the theoretical approaches to democratic judicial reforms
are hard to convert into empirically testable assumptions ?
The solution or my solution =>
The theoretical pluralism
Only by considering a variety of factors from a variety of methodological
perspectives one can get a more complete explanation of policy change.
I take the theoretical concepts and methodological approaches of three
generations of studies on policy change:
 The literature on neo-institutionalism
 The concept Europeanization
 The (French/American) cognitive approaches on public policies
3 explanatory factors are advanced: institutional, sociological and
anthropological (integrated into a longue durée analysis).
First theoretical assumption
...is to say that
in Romania the
institutional
setting
concerning the
relationship
between the
political power
and the judiciary
is path
dependent.
 Path dependence (the neo institutionalism)






USED
in explaining and understanding the post
communist difficult transitions
in showing that the communist past of the nascent
Eastern democracies = the main obstacle to change
“history matters”
past policy decisions can influence the future
offers explanations for deviant, particular outcomes
and for instances of exceptionalism
FOR ME= a form of analysis that simply traces the
policy outcomes back to temporally remote causes
Second theoretical assumption
...EU influences
the development
of governance in
Central and
Eastern Europe
through its
conditionality
and mechanisms
of
Europeanization
 This approach allowed me to investigate
 the policy problems perceived by the
European Commission (in the functioning
of the Romanian judiciary) demanding the
need for change
 the possible policy solutions formulated by the
institution
 the policy preferences expressed by the
European Commission
But =>
The process is much more complex
« It is more difficult
to establish an
independent
judiciary than is to
maintain one. The
forces that go into
creating an
independent
judiciary are
complex and
difficult to capture »
(Barry Friedman)
New methodological tools are needed:
this approach focused on the EU is somewhat too
tainted by the top-down perspective
what happens at the domestic level is presented as
following a clear European path, while
“situations” that act as pressures for policy change
are not perceived as “problems” only at the
European level
They came also from the domestic arena...
Therefore =>
Third theoretical assumption
which I
believe
essential to
understanding
the dynamics
of policy
change, is to
say that
 policy problems perceived by the European
Commission are influenced by the policy problems as
they are defined by domestic actors
 fits and misfits between EU requirements and the
functioning of the domestic institutions are politically
and socially constructed
 It is up to political and social actors at the European
and domestic level to determine what a “good fit” is
 both policy problems and policy outcomes are the
result of a domestic competition between political and
social actors in defining the “problems” of and the
solutions for the sector to be reformed
By this theoretical assumption
the book aims at
situating the
adoption of the
law on the
independence of
the judiciary not
only in its
political context,
but also in the
social one
The book
 tests the influence of cognitive and normative
elements in the public-policy making
 takes a social constructionist view of policy
problems by looking at
 “social construction of knowledge and
meaning in the State action”
 how the domestic actors construct the social
meaning of the independence of the judiciary
This is to say that…
Actors’ preferences matter...but
What it is
more
important is
how the actors
express
themselves
Symbols, ideas,
norms,
values…matter
too!
 the book
 offers insights into the process of problem
definition and agenda setting,
 offers an explanation based on the role of
causal stories in the formation of policy agendas
The reform of the judiciary in Romania is about...
=>
Narrative story lines on corruption and symbolic
devices
By these stories
difficulties are
transformed
in problems
and the problems
in policy
solutions.
They are used by
all the actors
involved in this
process…
 For the political domestic elites:
 The main problem = the corruption within courts
 The solution = to empower the MJ to clean it up
 For media and civil society:
 the problem = the political and economic corruption and
the corruption within the magistracy,
 the solution proposed is quite different => to drastically
reduce the political power over the magistracy
 What about the actors concerned by these debates?
In 2002 they were « scared ». The Romanian judges did
not have the courage to speak…about their working
conditions, the political pressures and on how corruption
works with courts => a diabolic Ministry/minister of justice.
The book = a case study to be
extensively explored
It could have a theoretical value as it weakens the
original preposition (EU) and suggests a modified
theoretical assumption (on the cognitive dimension)
that may be stronger.
A comparative case study for three methodological reasons=>
A comparative case study: 3 aims
 a longitudinal case study ( 19th century – 2004)
 Creation of the JC after the WWII in Europe
 “Dispassionate” the debates about the Romanian difficult reform
 Put the Romanian case in relation with other cases (necessary when
interested in deviant cases)
 to apply the “pathos of distance” to the understanding and the writing of my
research
 it tests the explanatory capacity of different theories
OVERVIEUW
The judicial reform between past, present
and future
Pre communist past:
The independence of the judiciary, no hope,
white hope
Chapter 1
As the
institutional
development is
a process, not a
single episode
in time...
Focuses on the independence of the judiciary
in the Romanian pre communist and
communist state.
 The aim is to look at:
 the institutional setup
 the political and social understandings on this
constitutional principle,
 the domestic perceptions on the functioning of the
judiciary and
 how the communist regime managed to find a
solution for a salient pre-communist problem:
the independence of the judiciary.
Chapter 1
Pre communist period
 Laws on the judicial
organisation (1865 – 1948)
 The need for a « great » reform
 attempts to reduce the powers
of the MJ over the magistracy
 Creation of the CSM (1909)
 The attitude of the political
parties (Liberals and
Conservatives) with regard to
the judges’ career
 The attitude of judges towards
the policy solutions proposed by
political parties
 Debates focused on the statut of
judges
Communist period
 The amendments to the law on
the judicial organisation
 The new ideology on the
“independence of the judiciary”
 How the RCP accomplishes the
« great » judicial reform
(purification, training, people’s
assessors, the supreme
supervisory powers of the
Procuratura)
 The role played by the
Romanian association of
magistrates
 Debates on Procuratura
The empirical evidence of this first Chapter represents the starting point in
understanding the judicial culture and the process of institution
(re)building after the collapse of the communism
But before analysing a peculiar case, let’s have a look at how it happens in a
“an exceptional” context =>
Chapter 2
After the
WWII, the
Judicial
Councils are in
Western
Europe “an
original solution
at the service of
an idea”
 Explores the establishment and the reforms
of the Judicial Councils in Portugal, Spain,
Italy, France, Belgium…
 to better understand what a political and
social process in this field should look like
in a well established democracy and why the
Romanian one is “long and difficult”
Chapter 3: represents a theoretical intermezzo
The independence of the judicary
after 1989
One step forward, two steps back
Chapter 4
the establishment
of an independent
judiciary after the
collapse of the
communism:
-1991 RO
Constitution
-1992, the law on
the judicial
organization
-1997, the
amendment
-2004, new
revision
 The 1991 Constitution institutionalized a powerful CSM in
charge of promotion, assigning and dismissing magistrates.
 it was a step forward in establishing a new, democratic,
institutional framework
 BUT the law on the judicial organisation represented two steps
back
 an opportunity to both reiterate the constitutional principle and
to deny it
 introduced a transitional period before the CSM starts to
accomplish its functions
 allowed the MJ to keep all its administrative and disciplinary
powers, inherited from the pre communist period and reshaped
in terms of practices by the communist one.
 Before 2004, this transitional period seemed to be never ending
Chapter 4
 the composition of the Council itself was totally
As in the pre
communist
period, in the
post-communism
the CSM was a
decorative
institution
determinate by the elected branches
But even if it was a Potemkin institution
 in 1997 (under a liberal MJ)
 in 2004 (under a social democrat MJ
the Romanian political parties tried to go further
in consolidating the attributions of the Minister
of Justice over this Council
Chapter 4
 On the policy problems perceived by the Romanian
legislative/executive related to the functioning of
the courts
 On the political views and policy knowledge on how
to implement the principle of the independence of
the judiciary
Main discours of the ro. Political parties: empower the
MJ
with one exception: The Democratic Union of the
Hungarians in RO = since 1992 clear position on a
drastic reduction of the attributions of the MJ.
In 2004...
 both the political and the judicial
commitments to independence were in doubt
at the domestic and the European level.
 The Executive => institutional changes that
would make judges more responsive.
 As the Romanian political parties proposed
institutional models that disappointed the
European Commission, the following
chapter...
Chapter 5
 looks at
 the European conditionality in the field of
the judicial reform and
 at the Europeanization mechanisms
The European conditionality
First question:
Was the European
Commission
engaged in the
diffusion of a
particular
institutional
model concerning
the powers of the
Ministry of Justice ?
 The informal conditionality has been highly
ambiguous.
 It is far from being clear what kind of institutional
solutions the Commission proposed when suggested
to reconsider the institutional independence of the
judiciary
 The Commission has accepted models with
extensive powers accorded to the Minister of
Justice ( Czech Republic). In others, the
Commission has suggested to drastically reduce
them (Slovakia).
 The models proposed by Romania = criticised as
violating the constitutional principle of judicial
independence
The EU conditionnality
Second question:
Why the EU’s
conditionality is
not as great as it
potential might
suggest?
2 reasons:
1. The Western European legal systems provide a plurality of
institutional models of judicial independence
2. European Union doesn’t have competencies in this field.
On principle, the breathing space of the candidate countries
in choosing one model or another was significant, but in
reality it was quite limited
This ambiguity created a lot of confusion in Bucharest
1. Romania had a long experience in duplicating Western
institutional models. In 2004 the Romanian government
tried to do the same, but it didn’t work.
2. The opinions given by a French advisor to Romania on
how to consolidate the Superior Council of the
Magistracy were not at all appreciated by the European
Commission for various reasons... => in order to
understand them =>
Chapters 6 and 7
 cover the domestic political and social
context in which the debates take place as
reflected in media
 The role of the civil society organisations
and the Romanian Association of
magistrates
Chapter 6
This social context
is important.
It influenced the
international
perceptions on the
functioning of the
judiciary in
Romania
 In this chapter I tried to demonstrate with a variety of
examples
 how media emphasize the need for a judiciary fighting
against society’s evils
 how the “effective” working of political and economic
corruption is compared with “the blindness and
confusion of the judiciary”
 Romania = presented as the paradise of the
corruption
 Journalists denounced politicians, business men,
members of the Parliament, Ministers...
They create the conditions for a « judicial activism »,
but…
Chapter 6
...distrust of
Ministers and
politicians was as
big as the distrust
of judges.
 Newspapers reported
 on corruption within the magistracy and the
incompetence of judges and prosecutors.
 the need of punishing past human rights
abuses and purging the judges and the
prosecutors who had been servile to the
Romanian Securitate (LUSTRATION)
 They deplored the small number of “honest”
and “uncorrupted” magistrates.
How do they react?
Chapter 7
In every liberaldemocratic regime,
a characteristic of
the judicial system is
its passivity
(Guarnieri, 1981).
But in Romania
there is a need for
« more » active
judges and
prosecutors.
An opportunity
window is opened
=> judges become
political actors
 This chapter is a sociological analysis of the
Romanian post-communist magistracy
 It looks at the how judges and the RAM perceive
the dysfunctions of the judicial system
 At how and why starting with 2003 they present at
the domestic and at the international level the
policy problems of the sector to be reformed and
their preferred policy solutions
 How they collaborate with NGOs and the
Delegation of the European Commission in
Bucharest and how they arrive to take part to the
elaboration of the law on the CSM in 2004...
Chapter 7
In 2003
4 judges,
3 avocats,
1 prosecutor,
with the support of
some NGOs and
« in the name » of
the RAM
establish the « policy
agenda » on the
Romanian Judicial
Reform…
and think to some
policy solutions
 Brussels is waiting…for a clear political signal
from Bucharest
 The Romanian judges understand that time has
come to speak about their working conditions,
the relationship with the MJ and the corruption
within the courts…with tears and fear, but they
speak on TV and at the international level…
 Critical situations => problems => policy
solutions that should be taken into account by
the Romanian government (Brussels insists!)
What institutional model in 2004?
 The European Commission considered that the
in between the
French
tradition and
the Italian
model
laws adopted in 2004 = an important step
forward
 Romania consolidates the attributions of the
CSM for the appointment, nomination, career
and disciplinary sanctions for judges but keeps
the French tradition with regard MJ and the
public Ministry
 What about the political parties? The story did
not end here...
New political debates concerning the
independence of the public prosecutors
The Romanian
political parties
wish that
public
prosecutors be
as independent
as judges!
 the issue is very controversial. The European
Commission said “no”.
 The Romanian political parties are once again
“confused” because this time THEY are asking for
more independence for public prosecutors and they
don’t understand why the European Commission
suddenly is against the “independence of the
judiciary” in Romania.
 The attitude of the Romanian political parties vis-àvis of the European commission is now very
different than in the past.
 Suddenly they discover that the European
Commission is quite “arrogant” in its relationship
with the Romanian government and “intrusive” in
the domestic political life.
Conclusions
The time has come to conclude…
This book
started with
three
theoretical
assertions. It is
now time to
put these three
assertions to
the test in the
light of the
empirical
results.
 The first assertion of the book – that the
judicial reform in Romania is path dependent is
fully confirmed.
 The second assertion of the book – focused on
the resistance to change of the post-communist
Romanian political parties – is fully confirmed.
 The third assertion of the book – the role of the
European conditionality and the mechanisms of
Europeanization – should be nuanced and
corroborated with domestic factors. The
conditionality should not be analyzed as a
constant factor of causation.
In this book I seek to
demonstrate that...
the institutional outcome of this public policy
is the result of a process of hybridization
between the ambiguity of a principled idea
(the independence of the judiciary) and
domestic requirements.
Institutions matter, actors matter too!
But actors change institutions by using ideas,
symbols, normes, values…
Is the Romanian case a deviant one?
 The convergence of public policies could be
analysed in terms of
Aims : NO
Outcomes : NO
Instruments: NO
Actors and process: NO
If we take into account these 4 elements the
Romanian case is not a deviant one if compared
with similar process in France (Mény, Minc…),
Belgium (Mertens), Italy (della Porta,
Mastropaolo, Ginsborg, Briquet, Guarnieri, di
Federico), Spain…The outcomes are not the
same but policy processes present similarities.




Theoretical and empirical conclusions
 This case study contradicts the conclusion that
This book is about
Democracy
civil society,
Policy processes,
Ideas,
Symbols which
orient the actors and
help to make sense
of confusing policy
problems.
the EU changes the political regimes of the
Member States (The functional logic of the EU)
 the research challenges the conclusions
traditionally drawn by the literature on
Europeanization and public policy analysis
 it shows the importance of taking into account
symbols and anthropological factors in
explaining the increase of the power of judges
New empirical research agenda
 The activity of the CSM
 After the « war » => study the new
New case
studies
alliances established between the MJ and
the CSM
 Debates on the independence of the public
prosecutors
 The 10 cases of big corruption (the Big fish)
 The emergence of new associations of
magistrates
More comparative research….?
New empirical and theoretical agenda
 To explore in more theoretical terms the
My case study
invites
TO THINK TO A
COMPARATIVE
ANALITICAL
FRAMEWORK
in order to
elaborate
“a political theory of
the judicial reforms
in Europe”
 Institutional
 Political (weak parties/fragiles coalitions)
 social conditions (politics of rights, perceptions
on the policy-making institutions)
under which such reforms take place
What are the domestic/international conditions
that promote such reforms?
What are the causes behind these developments?
Idea => to point some general determinants/to see
if these reforms are likely to occur in a particular
setting …
WHY? (new debates at the EU level) BUT HOW?
Réformer la justice dans un pays post
communiste
Thank you!
Data
This book combines
comparative historical
analysis and personal
interviews.
Information collected
= checked against
several sources in
order to minimize
the distorting effect
of the self-serving
memories of
participants to the
process analysed
 Pre communist and communist period: parliamentary
debates and political discourses, the collection of the
Romanian Law Review, party publications and newspapers
 Post-communist period: parliamentary debates, political
declarations, reform plans elaborated by the MJ,
newspapers, international reports produced by the
European Commission, Freedom House, American Bar
association, Open Society Institute...
 Interviews conducted with representatives of the
political parties, members of the CSM, Ministers of
Justice, judges and prosecutors, members of the AMR,
representatives of the Bucharest based NGO-s involved
in the political debates on the judicial reform, journalists
and civil servants at the Delegation of the European
Commission in Bucharest.