Rifts in the Anti-Corruption Front: The Struggle Over Jurisdiction and Power

Quick Hit: August 2nd, 2023

Serious Divides Emerge on Anti-Corruption Efforts

In this week’s blockbuster July 31st final day of the Parliament’s summer session MPs took up a highly controversial set of amendments to the “Code of Criminal Procedure” regarding the division of responsibilities between the Anti-Corruption Prosecutor’s Office and the National Anti-Corruption Center CNA. This story begins back in March 2023, at which time we wrote about parliament’s proposal to delineate responsibility for investigating and prosecuting corruption. Here is our summary of the changes made at that time which were voted into law March 22nd.

• Anti-Corruption Prosecutor’s Office - This office will be tasked with prosecuting “high level” corruption which is defined as corruption by the President, members of parliament, members of the government, judges, prosecutors, CNA staff, and SIS officers. These cases will presumably be tried in the new Anti-Corruption Court that the President and parliament have promised will be created in the next 3 months (note: it has not yet been created but is planned this year)

• National Anti-Corruption Center CNA - This agency will be responsible for “systemic corruption” which most likely refers to organized corruption within state agencies and publicly owned companies.

• Criminal Investigators with the Ministry of Internal Affairs (Police) - This agency will be responsible for investigating petty corruption, most likely focusing on individual extortion and bribery complaints against state officials.

This law was set to come into force on August 2nd, but this week Olesea Stamate, head of the Parliamentary Legal Committee forced new amendments into the “Code of Criminal Procedure” to be voted on July 31st which made changes to this formula. Specifically, it limited the jurisdiction of the Anti-Corruption Prosecutor’s office to the various persons and institutions listed above and to bribes greater than 300,000 lei or cases with damages to the state of more than 3 million lei. It also put corruption in state institutions such as ministries, hospitals, universities, customs and border control, city halls and others specifically in the jurisdiction of the National Anti-Corruption Center CNA and not the Anti-Corruption Prosecutor’s Office. Most importantly, the amendments remove CNA officers from management and control of the Anti-Corruption Prosecutors office firmly separating them into 2 different investigative bodies.

PAS MP Igor Chiriac added these amendments to the bill on July 26th. Legal expert for the anti-corruption NGO Watchdog Alexandru Bot explained the irregularity in this procedure noting that the first reading of the Code of Criminal Procedure amendments was made on June 23rd where there were no mentions of these amendments. According to parliamentary rules new amendments have to be made within 10 days of this first reading in parliament. This allows for amendments to have time for the legally required public consultation period. By adding these amendments on July 26th it not only broke the rules but also assured that there would be no time for public comment before the vote on July 31st. On the same day that MP Igor Chiriac proposed the amendments MP Olesea Stamate went on TV supporting them. Experts from Watchdog believe that this was done intentionally to prevent public consultation and to roll back reforms passed in March before they could come into effect. The purpose of which would be to limit the powers of the Anti-Corruption Prosecutor’s Office.

Chief Anti-Corruption Prosecutor Veronica Dragalin agreed and called out these proposed amendments publicly. She highlighted the fact that they were snuck in without public constellations and that civil society would not have an ability to weigh in on a major change in anti-corruption agencies. Dragalin noted that if passed 500 active cases would immediately be removed from her office and be passed to prosecutors who are not specialized in corruption cases and who have not gone through the vetting process that her office has. She stated that in order to fight corruption her office must be strengthened and given more resources, not weakened.

This public fight between head of the Parliamentary Legal Committee Olesea Stamate and Anti-Corruption Prosecutor Veronica Dragalin (supported by various civil society voices) is the culmination of what has been a set of quietly stewing disagreements and rivalries within PAS and civil society on the topic of judicial and anti-corruption reform. Privately, activists and observers have accused Stamate of slow rolling reforms or even subverting them with ulterior motives. Now these backroom discussions have moved into the open with one of Moldova’s best known and respected anti-corruption activists, Valeriu Pasha, director of Watchdog, blasting Stamate in the following statement:

“Yes, I accuse Olesya Stamate of working in the interests of Plahotniuc's gangsters. And he does it by the same methods - through legislative engineering, publicly presented as “reforms”, wrapped in complex terminology, signed by a naive deputy who does not seem to know what world he is in. Exactly in the style of Sirbu, Kandu, Apolski and company. Obviously, this scandalous amendment will pass without public hearings,”

In response to the public pushback against the amendments, Stamate said that they are designed to "be able to objectively assess which of the institutions work effectively and which do not“ and that there would be no more "excuses for modest performances."

Speaker of Parliament Igor Grosu called the reaction of the Anti-Corruption Prosecutor’s office "a bit exaggerated" and suggested that “We cannot continue these endless discussions about the size of the bribe. While we are discussing the size of the bribe, someone is probably taking these bribes.”

In the end, the bill with the controversial amendments was passed 55 - 0 with all PAS deputies present voting for the bill and opposition politicians having boycotted the day’s parliamentary proceedings earlier in the day over a different topic. No questions were asked in the process of passage.

Left: Veronica Dragolin, Right: Olesea Stamate

Analysis - What Happened Here?

While Olesea Stamate has stated that these amendments were focused on delineating responsibilities between the various anti-corruption agencies that is not really what is going on. That delineation of responsibility between high level corruption, systemic corruption and petty corruption was already passed in the March 2023 reforms and set to take effect today August 2nd. The most important changes passed on Monday refer to the structure of these agencies and their relationships to one another. This is best understood by way of analogy and here we will call on the immortal opening line of the TV show Law and Order:

“In the criminal justice system, the people are represented by two separate yet equally important groups: The police, who investigate crime, and the district attorneys, who prosecute the offenders. These are their stories,”

Within the US Federal system we could basically draw the same relationship - the FBI investigates and US Attorneys prosecute. Veronica Dragolin, herself a former Assistant United States Attorney for the Central District of California, is obviously well aware of this standard relationship.

In Moldova, when talking about corruption the Anti-Corruption Prosecutor’s Office is roughly equivalent to the Federal US Attorneys in the US. The National Anti-Corruption Center CNA is a type of specialized police force or analogous to the FBI.

These amendments effectively sever the relationship between the Anti-Corruption Prosecutor’s Office and the CNA putting them into different spheres of work. This means that in their police function the CNA will investigate corruption cases outlined in their jurisdiction and turn those cases over to normal prosecutors who are not specialized in anti-corruption work and who have not yet gone through the vetting process to ensure their integrity. Meanwhile, the Anti-Corruption Prosecutor’s office is being left without an investigative police function and all the powers that go with it.

Speaking of this change Veronica Dragolin called for new powers for the Anti-Corruption Prosecutor’s office in light of these changes (which she strongly opposed). She stated:

“From our point of view, these problems can be solved by strengthening the Anti-Corruption Prosecutor's Office and empowering it, like DNA has in Romania [DNA is the national anti-corruption agency of Romania]. The law should allow us to carry out special investigative measures. For example, we must have a group of employees who can conduct surveillance, we must have the necessary equipment so that we can intercept telephone conversations, install cameras or microphones on people, in the office or in other places to record conversations. In our experience, this is the only way to record the facts of corruption, the only way we can collect enough evidence to bring to justice those who commit corruption crimes,”

Currently, Anti-Corruption Prosecutors rely on the CNA, SIS and local police for wiretaps and other tools listed in her statement. Now their access to these tools at all is in question.

Responding to this call for more powers, Olesea Stamate rejected the call responding:

“There is a very clear difference between the roles of different bodies. The investigating authorities are engaged in special measures in the investigation. The role of prosecutors is to monitor the legality of the measures taken. If the prosecutor does both, then the question arises - who will check whether the law is being observed. In certain situations, it is not good to combine two functions under one roof, as they come into conflict,”

The practical result of the passage of these amendments is the weakening of the Anti-Corruption Prosecutor’s office led by Veronica Dragolin and the strengthening of the CNA as the most powerful anti-corruption agency in Moldova.

What is shocking about this is that it is a major reversal in the government’s strategy over the past year. There have been major efforts to create an Anti-Corruption Prosecutor’s office that is free of corruption and can be relied on to combat major corruption. The proposed creation of a specialized Anti-Corruption Court is meant to allow this newly vetted and empowered office to bring cases to a court that it itself vetted for integrity issues and empowered to quickly manage cases.

Now, this policy has been reversed for the majority of cases and the CNA and regular prosecutors and courts have been re-empowered as the main vehicle for fighting corruption. At the same time the vetting of judges and prosecutors was only approved by parliament Monday and is not expected to conclude until December 2025. Worse, there have been no major reforms to the CNA under the PAS government since most reform effort went into the Anti-Corruption Prosecutor’s office.

Highlighting this issue further is the historical performance of the CNA. Jokingly this agency is often referred to as the “Catch and Release” police because of their track record of performative high profile arrests and quiet releases of suspects without charges as soon as the story leaves the headlines. A source who spoke to Moldova Matters with knowledge of the agency’s performance stated that between 2014 and 2018 around 4500 cases were brought to prosecutors by the CNA. Of those only around 500 ever made it into a court room. We don’t know what number of these led to convictions. This is not to say that the modern CNA is an incapable institution for fighting corruption, but it’s historical capability and lack of recent reform raises real questions.

What is clear however is that a major change in strategy which empowers the CNA and regular prosecutors at the expense of the Anti-Corruption Prosecutor’s Office happened in the guise of a small amendment. This amendment was passed in an non-transparent manner with little to no scrutiny or consultations with civil society. Furthermore, it was not passed for the reason stated by head of the Parliamentary Legal Committee Olesea Stamate of delineating investigative jurisdictions as this was already passed in March and set to take effect today.

This is a complicated story that is evolving and we’ll be watching what the government’s next actions are in their signature promise of a more effective fight against corruption in Moldova.