Quick Fix Solutions-Anticorruption as Core/Peripheral Modality of the ‘Rule of Law’

Abstract

Anticorruption has become the fulcrum of conditionalities for unstable democracies. In the EU, antigraft packages formed the common denominator of stabilization policies for Romania, Bulgaria, the Western Balkans, Moldova, and Ukraine. Union conditionalities trailed broader international trends and campaigns. The shift led to a crescendo of institutional innovations. Discursively, it generated a degree of conceptual overlap: anticorruption, for peripheral stabilization purposes, equates with the rule of law. I argue that the exclusive stress on anticorruption as a panacea for the (semi)periphery is fraught with perplexities. Paradoxically, in systems that can be reliably described as corrupt, the policy has a propensity to be derailed from its ostensible purposes. This danger results partly from categorial tensions between RoL normativity, on the one hand, and, on the other, the ethical purism and policy quantification inextricably linked with anticorruption. In the context of peripheral crusades, tendencies towards legal instrumentalism and populist emotionalism are exponentially higher than in stable jurisdictions. Consequently, unidirectional attempts to stabilize such systems by way of repressive anticorruption backfire. Likelier results are instability or forms of stability that might not correspond to central, received understandings of how a rule of law liberal-democratic system should operate. By the same token, in the integrated transnational constitutional system located at the intersection of EU and Council of Europe guarantees, “reverse conformities” tend to upset core tenets and representations of the rule of law. The paper argues that anticorruption policies, albeit eminently useful, should be fettered by rule of law constraints, not equated with the notion of the rule of law.

1 Introduction: The Corrupt Periphery

Repressive anticorruption is a staple instrument in the toolkit of law and development. Either by leveraging domestic campaigns or through structural reform conditionalities applicable to the periphery, anticorruption has been represented as conducive to and coextensive with the rule of law. The question addressed by my article is whether punitive anti-sleaze policies¹ will bring about the state of affairs envisioned by reform entrepreneurs. Will anticorruption help the Romania, Albania, Bulgaria, etc. to ‘become Denmark’ (Mungiu-Pippidi 2013) and ‘have’ the rule of law?

Thus far, the resilience of the solution has gone against the grain of at best mixed experience. In a range of diverse settings, from 1990s Italy to 2010s Brazil, anticorruption campaigns have missed their marks. Lack of success is not incidental and, in what follows, I question in point of principle the optimistic view on the ability and desirability of harnessing the radical transformative power of “[anticorruption] enforcement ‘on steroids’” (Gonzalez-Ocantos et al. 2023), p. 7) in order to effect positive change. My argument is in no way inimical to the pursuit of anticorruption as such, a good thing by any account. I challenge radical peripheral quick-fixes, embedded in rule of law structures of justification.

My approach is three-prong. First, as I argue, anticorruption is in conceptual tension, if not at loggerheads with the rule of law. Even though the rule of law is a complex concept, anchored also in contexts (e.g., Loughlin 2009, also in this issue), its generic usefulness as a legal term of art is normative and limited. Insofar as the various liberal traditions have converged into a comprehensible common denominator,² the focal point is the protection of the individual (Shklar 1987). Conversely, anticorruption is on the one hand a punitive policy and, on the other, an evaluative term with a strong emotive-ethical component. When focus is shifted from the traditional scope to the “coercive capacity of the state and its disciplinary structures and effects”, what results is “a very different if still related animal to the rule of law” (Humphreys 2011 at 174).

Second and paradoxically, this contradiction is in practice particularly problematic at the periphery, in systems that can be reliably described as ‘corrupt’ and appear to need anti-graft crusading the most. Even though there is no denying that corruption affects them gravely, the stress on anticorruption is fraught in unstable systems with intractable perplexities. In such systems, the policy has a high propensity to be hijacked and instrumentalized by the manipulation of both anticorruption-driven ideologies and effectiveness imperatives. Vicious rather than virtuous cycles eventually result from local pathologies and lead to their reinforcement.

Third, wider implications of such normative collisions can potentially reshape the centre-periphery dynamics. Anticorruption narratives³ may occasionally embrace ‘geographical morality’ connotations and undertones (Padideh Ala’I 2000)⁴ but the categories of periphery and core are not used here polemically. The terms are indicative of realities, crystallized in conditionalities. In the EU, RoL reforms have been negotiated with countries that were at the time of accession negotiations and in many ways still are peripheral in in comparison to the systems of the liberal-constitutional core. The Copenhagen criteria and a new modality of enlargement were adopted precisely in the spirit of recognizing a rift between the EU-15 of 1995 and post-communist jurisdictions ante portas and spelling out how it could be bridged.⁵ By the same token, once the metamorphosis takes place, the principle of equality of states formally prevails, including in terms of standard osmosis. More generally in recent years⁶ and constitutively in dense orders such as the EU, core and periphery are thus useful socio-legal heuristics, not fixed categories.

To exemplify these claims, I will draw on European practices, assessed comparatively. My examples will bear more heavily on Romania, against the backdrop provided by practices in comparable jurisdictions on which anticorruption conditionalities were or are imposed (Albania and Bulgaria). Romania was under a formal conditionality, which doubled down on a long, politically and socially polarizing campaign. Contrariwise, Bulgaria, subject to an almost identical pre- and post-EU accession formal conditionality, avoided its implementation from the very onset.⁷ Albania, as well as the other current candidate countries slated for eventual accession (more recently, Ukraine and Moldova), has been under a strong conditionality, strongly enforced, especially through the judicial vetting process. Unlike in Romania, Albanian anticorruption did not upend the political system but appears to have further stabilized it. To check for external validity, the analysis also factors in Brazil, rocked by Operation Car Wash (OCW) between 2014 and 2021. Brazil is considered here as a ‘control’ or ‘most dissimilar’ (Hirschl 2005) peripheral case (Neves 1992). The OCW campaign was primarily endogenous, with international OECD, Inter-American and US leveraging (Sanchez-Badin and Sanchez-Badin 2019; Brewster and Ortiz 2020; Gonzalez-Ocantos et al. 2023, at p 265). Finally, references to the implications and overall context of the Tangentopoli campaign are inevitable. Italy (endogenously-driven campaign, without international conditionalities or leveraging of the campaign) is not formally a peripheral jurisdiction. Italian practices served, however, as a blueprint or prototype for subsequent anticorruption drives, by voluntary imitation (Moro 2004) or as “Ikea-style” design exports (Benvenuti and Paris 2018).

The diversity as well as intersecting similarities of jurisdictions subject to analysis make possible the application of the full gamut of the comparative method. Implications of the case selection will be worked out throughout, to substantiate the general argument that anticorruption campaigns or conditionalities conflict with the general values informing the rule of law concept and are suppressive of rather than conducive to realities that would conform to the notion.

The following section, forming the bulk of the article, analyzes the ways in which anti-graft policies interact with values informing received accounts of the rule of law, bearing on three essential dimensions: impartiality, legality and fair trial guarantees, and judicial independence. A third part will focus on the inescapable law/politics nexus in peripheral anticorruption, hence, impliedly, also on the democracy and rule of law correlation. The fourth articulation of the paper probes the way in which some problematic connotations of anticorruption, designed for peripheral settings, migrate paradoxically to the center, producing what I call here ‘reverse conformities.’ I will, in this respect, address the way in which anticorruption policies have produced generalizable, difficult to contain effects in recent CJEU and ECtHR landmark cases. The article closes with an exploratory, cautionary conclusion.

2 Rule of Law and Anticorruption: Normativity and Policy

2.1 Corruption, Corruption Crimes, Anticorruption

A common misconception equates anticorruption with the prosecution of corruption crimes. Corruption crimes such as active and passive bribery or influence peddling exist in all modern criminal codes. However, anticorruption is not a legal notion but an ideological poise underpinned by specific, weighted representations about how democratic politics ought to function. Such representations may or may not transpire into legal interpretation.

Consider an example. In 1903, Dickinson, a New York alderman, was convicted by the Supreme Court of New York, Appellate Division, under a state bribery statute. He had conditioned his vote for additional money to be allocated to the street cleaning department for a new plant in Brooklyn on the reinstatement by the street commissioner, a certain Woodbury, of an employee named Covino. The alderman stated that he believed the latter to have been unfairly dismissed. In the event, the court convicted the alderman for bribery, as conditioning the fulfilment of an official duty on the receipt of -under an element of the statutory definition of the crime- “anything of value”. The reasoning bears a somewhat extensive quotation:

“The interests of the public service require that public officers shall act honestly and fairly upon propositions laid before them for consideration, and shall neither be influenced by, nor receive pecuniary benefit from, their official acts, or enter into bargains with their fellow legislators or officers or with others for the giving or withholding of their votes, conditioned upon their receiving any valuable favor, political or otherwise, for themselves or for others….It is quite as demoralizing to the public service, and as much against the spirit and intent of the statute, for a legislator or other public official to bargain to sell his vote or official action for a political or other favor or reward as for money. Either is a bribe, and they only differ in degree.”⁸

In its jurisdiction of origin, Van De Carr is a textbook example of an extravagant interpretation. It rests on a purist vision of politics that was eventually found unsustainable. Whereas any understanding of democratic politics would condemn the receipt of material benefits for the performance or not of a public duty, the idea that any measure of political informality (logrolling, vote-trading, tit-for tat) could be criminally prosecuted was discarded as untenable. Given the time when the verdict was rendered, it may or may not have been that the judge was influenced by the turn-of-the-century malaise with Tammany Hall-style politics and politicians that characterized the onset of the Progressive Era. The record as such does not show (Eskridge et al 2001, p. 274). The example is inchoately indicative of the concept-stretching that is inevitable in programmatic anticorruption, which is premised on the notion that “the pursuit of absolute integrity” (Anechiarico and Jacobs 1998) will produce the systemic stabilization of a rule-based society.

In the specific EU framework, anticorruption was initially a marginal criterion. When Slovenia filed its application for EU accession in 1996, the last of the then-thirteen candidate cohort, there was literally no acquis on corruption and no EU country was party to any anticorruption treaty (Schroth and Bostan 2004 at 636). Pre-accession monitoring of the ‘Big Bang’ enlargement emphasized judicial independence via judicial self-government (Kosař, 2016), as the predicate of reforms negotiated under the canopy of the rule of law prong of the Copenhagen criteria. In the class of 2004, only Slovakia, perceived as particularly vulnerable, was prodded to create, in 2003, anticorruption institutions. Anticorruption became the fulcrum of RoL conditionalities after 2004 (Szarek-Mason 2010), with corruption, especially high-level graft, serving as the main explanatory ingress point into addressing peripheral problems.

One can understand this shift as partly trailing broader transnational trends, partly giving effect to new contexts, which appeared in need of more radical responses. As regards trends, the EU and its sister organisation, the Council of Europe, were jumpers on a global bandwagon. European reforms echoed prior Washington Consensus, IMF and World Bank structural reform packages (McCoy and Heckel 2001) and mirrored resounding anticorruption campaigns in other peripheral systems and shifts of paradigm in core jurisdictions.⁹ Anti-graft changes were first implemented in Ukraine at the behest of the IMF and the US State Department, seconded by the Venice Commission and the EU External Action Service. Policy shifts are, in turn, entwined with the spread of the rule of law indicators centred on integrity and the rise of a global anticorruption industry (Sampson 2010). Corruption perception indexes compiled yearly by Transparency International were the initial catalysts (the Corruption Perception Index (CPI), from 1995 onwards and the Bribe Payers Index, from 1999). Nowadays, a preoccupation with ranking relative integrity involves a broad range of international and transnational entities, public and private. A 2017 study on various rule of law indicators used by government bodies and transnational NGOs such as Freedom House revealed for instance that, even though the indicators have been differently conceptualized from one body to another and some conceptualizations did not even include anticorruption, the country scores as such correlate well with one another and perfectly with the CPI This led the authors to ponder whether rule of law indicators might “measure [perceptions of] corruption rather than the rule of law” (Versteeg and Ginsburg 2017, at 113). Rankings and numerical indicators imply that the phenomenon can be objectively quantified (Șerban 2015), which contributes to reinforcing anticorruption conditionality packages. If measurement is objective, milestones can be set, and progress over time can be assessed.¹⁰

As regards new contexts, Romania and Bulgaria, poorer and appearing less stable democratically than the members of the 2004 cohort, were pinpointed on a lower circle of peripheral underdevelopment. Corruption seemed self-evident as a label of their predicament and as a point of ingress for redemptive RoL policies. The insistence on repressive anticorruption as the main stabilization policy for Romania and Bulgaria¹¹ and subsequently for the Western Balkans, Moldova, and Ukraine, has led to a crescendo of institutional innovations. These range from independent prosecutorial watchdog in Romania to autonomous vetting bodies (Albania, Moldova, Ukraine) and to vertically integrated autonomous structures in Ukraine, from anticorruption police all the way up to a supreme anticorruption court. Discursively, this path dependency has led to a degree of conceptual overlap. Placing the stress on political corruption as the arch-evil and on anticorruption as panacea was a choice that replaced inquiries into more complicated causalities, such as poverty and brain-drain, regional cleavages, structural inequalities and social tensions, underfunded education and health care, shallow democratization reflected in generalized instrumentalism, institutional path dependencies, also pre-Communist, and the like (Bugarič 2015, Iancu 2020). Addressing these latter issues under the specific time-limitations of Enlargement is however impossible, within the constraints of the EC’s mandate in the pre-accession process, in the procedural logic of the enlargement. The Commission, as master of peripheral conditionalities, needs a vade mecum that can be translated into policies whose progress can be charted in progress reports.

A proxy must be found, and corruption was the obvious one, for a variety of reasons, ranging from Enlargement and European constitutionalism fatigue after 2004–2005, to value judgments about the inferior status of the newer periphery, and the already-mentioned availability of the policy solution in other law and development contexts. However, unlike prior reform preferences (such as the emphasis on judicial self-government or regulatory agencification), anticorruption places the concept and practice of the rule of law under much greater stress.

2.2 Anticorruption and Impartiality: Figures, Anecdotes, Conjectures

Both in the hypothesis of an endogenously driven campaign and in the case of conditionalities, once the momentum of anticorruption is set in motion, tensions inevitably ensue between traditional rule-of-law-derived representations about how a liberal-constitutional legal system should operate and anticorruption (re)presented as the rule of law.

Success or failure of campaigns are the functions of quantification (how many convictions, how harsh and deterrent the sentences in terms of man-years actually served, how high the political position of the accused and thus the exemplary function of the sanction, how many assets seized, how CPI/BPI rankings go up or down over time, thus signaling improvement or recess, etc.). Whether a campaign is successful or not will be assessed, more precisely, on the basis of numbers and profiles. The more high-level dignitaries are convicted severely, the more successful the campaign or effective the conditionality. Conceptually, under traditional rule of law understandings, this is problematic from the start. Dicey famously described the glories of the English rule of law precisely as a function of equality of all parties before the court (Dicey 1885).

To be sure, equality under the law also means that the strong should be punished according to the same rules and suffer the same punishment as the meek. Since peripheral systems are fraught with traditions of impunity, “forc[ing] the powerful to appear in court, send[s] a strong message of legal equality.” (Gonzalez-Ocantos et al. 2023, at 170). Anticorruption has accordingly transformed this otherwise unquestionable desideratum into a good-standard pressure on the institution of immunities, a drive that finds its justifications in the policy imperative of demonstrating success by high-profile indictments and convictions.¹² By the same token, impartiality is also arguably in low supply in peripheral systems. Upending traditional constitutional instruments such as immunities incurs significant risks¹³ and comes at the price of a leap of faith in the unknowns of prosecutorial and judicial impartiality.

More importantly, going programmatically after high-profile defendants often provides the appearance of targeted prosecution, with detrimental effects on the credibility of anticorruption. The logic as such of success in pie-chart format (three ministers, one prime-minister, twenty deputies, four judges, etc.) is jarring to traditional sensibilities. Statistically, work on Latin America and Eastern Europe indicates that political weakness (losing elections or membership in fringe parties) is the best predictor of prosecutions, at least in the case of high executive dignities (Popova and Post 2018). In Brazil, the Lula conviction was broadly considered abusive, especially after the Intercept leaks. In Romania, a justice of the Constitutional Court was indicted for what in retrospect appears to be a ludicrous, trumped-up charge concerning an ostrich farm, which allegedly provided meat, supposedly exported to Russia via Turkey, thus flaunting post-Crimean occupation sanctions on the Russian Federation. The justice was later acquitted, on the grounds of the inexistence of the corrupt act.¹⁴ Albanian vetting, reviewed below, is replete with disqualifications that appear suspicious, of apex members of the judiciary: Constitutional Court judge during her application for the ECtHR national judge selection process, members of the high prosecutorial council, etc.

In a juristic reading of these and many similar high-profile indictments or convictions, appearances mean little. Each case is its own small technical universe of form and substance: ‘the first instance (or appeals) court has decided’. Conversely, in an anticorruption-driven interpretation, since belief provides its own justification, anecdotes and suspect overlaps can be explained away, as incidental-accidental-coincidental: ‘the wheels of justice cannot be stopped just because an election cycle is approaching’.¹⁵ The rate of acquittals, likewise, says little about the success or failure of anticorruption. Acquittals are evidence of the normal functioning of the legal system, in any liberal-constitutional jurisdiction.¹⁶ A higher rate could for instance be attributed to a failure by the judges to carry out their tasks dutifully, to the poor instrumenting of the prosecution’s case, or to any other number of reasons, such as, for instance, the impact of judicial review on the constitutionally acceptable parameters of a specific crime. The trivial nature of a specific charge is no necessary indicator of tactical political motives, especially as any stakes, however diminutive, can be discursively loaded with high expectations of probity, derived from the ethical side of ideological anticorruption.

In Romania, as this is written, a former prime minister, whose mandate straddled the worst of phase of the pandemic (2020–2021), and two health ministers of a smaller anticorruption party in the then-ruling centre-right coalition have been charged by anticorruption prosecutors with abuse of office and complicity thereto.¹⁷ They are accused of having purchased, without going through the necessary procedural steps, Covid vaccines well in excess of actual needs and thus producing an assessed damage of approximately 1 Bn. Euros to the Romanian state. No actual pursuit of personal benefits is imputed. In the past, the absence of evidence of actual material benefits had however been sometimes disregarded in the case of high-ranking politicians (Van de Carr-style, as ‘pursuit of non-patrimonial benefits consisting in political capital’). The anticorruption party, now in opposition, accuses the prosecutors of political targeting in view of next year’s elections. In return, it receives a strong dose of its own past medicine: the wheels of justice move in mysterious but principled ways, justice will decide, the accused will have the opportunity to prove their innocence in court, etc.

The legal system is a closed one and its acts, embellished by Coke’s “artificial reason of the law”, the “myth of legality” (Gonzalez-Ocantos et al 2023), benefit in principle from a much stronger presumption of ex ante legitimacy than those of the majoritarian branches. This is due to the widely shared belief that judicial decisions are legally bounded and presumed to be rationally constrained.¹⁸ Outwardly, agreement or dissatisfaction with specific outcomes can only be translated by way of rough proxies: conjectures and conspiracy theories vs. applause and Schadenfreude. Nefarious intent as such, in prosecution or adjudication, is almost impossible to ascribe, except in the rarest of cases (e.g., Intercept-style leaks). Even in such extreme hypotheses, charitable readings are not necessarily excluded.¹⁹

General constraints are compounded significantly by the effectiveness-driven nature of programmatic anticorruption and by the radical impact it has on political systems. To show equanimity, campaigners and anticorruption watchdogs usually go to great lengths to distribute indictments and convictions across the political spectrum and high-ranking profiles. However, anticorruption tenets are not amenable to falsification and such exercises may just as easily be interpreted as in blatant contradiction with RoL-driven impartiality imperatives. Furthermore, under anticorruption-driven policy and ideological imperatives, legal normativity as such is a variable category.

2.3 All is Fair in Anticorruption Wars? Legality and Due Process Concerns

Liberal understandings of the rule of law are also centred on legality and due process guarantees, which form the crux of Fuller’s influential procedural theory on the rule of law (Fuller 1969). The theory is abstract-analytical and ideal–typical in nature, meaning that no legal system applies all eight ‘elements’ indiscriminately in all branches of law.²⁰ Nonetheless, liberal systems generally recognize in the field of criminal law a strict application of legality guarantees and the skewing of interpretive doubt in favour of the defendant (legality of incrimination, rule of lenity), the strict interpretation of norms (for instance, the prohibition of analogical reasoning), de minimis interpretations shielding trivial acts from prosecution and/or conviction. Constitutional criminal law protections also include a palette of special due process guarantees, such as the presumption of innocence and strict judicial controls on pretrial measures, including limitations on pretrial detention. Such safeguards, albeit they can be abused, favour the defendants, irrespective of who they defendants are.²¹

In the ‘sanitizing rhetoric’ of fights against corruption, procedural and substantive guarantees appear however wholesale as hindrances to the achievement of broader societal objectives. As the lead prosecutor in Lava Jato, Deltan Dallagnol, put it, rights are ‘filigree’, meaning finery to be deferred for a post-corruption-eradication horizon (Bastos dos Santos and Solano Gallego 2022, at 293). The same prosecutor also opined, according to his “Christian cosmovision”, that, since “corruption kills” and since “God [was] acting though these circumstances and giving us a unique historical opportunity to promote changes in favor of a more just and honest society”, the yardstick for the prosecution of corruption crimes “must be murder” (Leitão and Gribel 2015).²² Divinity invocation aside, what this means in essence is a double loading of the dice or a double-bind placed on the rule of law. The prosecution of corruption crimes should be given Nuremberg Trials-like latitudes and leeway, as if crimes against humanity or mass murder were combatted, whereas traditional defence standards should be lowered in inverse proportion, until the fight is won. Zeal in the name of the higher purpose and the systematic bending of rules to attain it are intrinsic and universal features of crusades. Eventually, these features are also their undoing: the need for zeal and unorthodox measures is legitimized by the same “myth of legality”, which in term the steady use of such instruments eventually erodes (Gonzalez-Ocantos et al. 2023).²³

In all anticorruption campaigns, normative frameworks are invariably under pressure, with a view to securing high-end convictions and in the name of the higher ethical ideal propping the campaign. Brazilian practices reveal the full gamut of transgressions, both procedural (leaks of wiretap transcripts to the press, coercive uses of pretrial detention, plea bargaining induced by discretionary uses of pretrial measures) and substantive (expansive interpretations of special and general criminal law norms, based upon unsubstantiated or looser lines of logical causation). In the latter respect, the innovative use of the doctrine of command responsibility (Tatherrschaft), reinterpreted as ‘control theory of perpetration’ (domínio do fato) stands out. One of Da Silva’s convictions was essentially based on indicia that a company wanting to secure a contract with the state oil giant Petrobras planned to give him as kickback a beachfront penthouse condo (which he never used or held title for) in exchange for an intercession, which he must have made, having ‘functional control’ over Petrobras appointments.²⁴ He was convicted at several removes of interpretation: agency and intent were implied, lack of a title interpreted as evidentiary proof of hiding property. Brazilian prosecutor Dallagnol argued already in his master’s thesis for a reversal of the presumption of innocence in corruption cases to a presumption of guilt, with onus on the ‘corrupt’ defendant to prove innocence. Judge Moro, leaning on Italian precedents, intimated that corruption trials best be decided (also) in the court of “enlightened” public opinion (Limongi 2021).²⁵ By skilful and highly innovative jurisdictional ‘forum-shopping’ by judges and prosecutors involved, all grand corruption cases were systematically moved to the court of judge Moro (Brandao 2022, at pp. 235–238). This move relied on and also reinforced the judge’s heroic profile and ensured close collaboration with the prosecutorial task force and of both with the court of public opinion (see discussion in Sect. 2.4., infra).

Such incentive structures and determinations cut across systems, being intrinsic in the dual, mutually reinforcing nature of anticorruption instrumentalism: the need to secure convictions, to feed the campaign drive and demonstrate success by numbers, on the one hand, and the ethical purism driven by the unreasonable representation of a corruption-free ‘equilibrium’ or ideal baseline, on the other.²⁶ Romanian anticorruption, kept alive for a much longer span primarily by the perpetuation of the post-accession CVM, had initially the merit of temporarily displacing the local culture of political impunity. This achievement was however progressively overshadowed by amassing questionable practices. The need to secure large numbers of high-profile convictions induced, for instance, a spike in surveillance, a tendency that originated in anticorruption prosecutorial practices but eventually spilled over in general criminal justice. The number of wiretaps exponentially increased and courts approved them almost unanimously.²⁷ At the High Court, which issues national security warrants, discussed in the next section, the approval rate ranges, for example, constantly around 99%. In Robespierrian key, this tendency towards surveillance was for a long time naturalised-rationalised as needful and unproblematic: the innocent has nothing to hide.²⁸

Many high-profile convictions in Romania were secured on abuse of office charges. The crime is an assimilated corruption offence and essentially meant that any administrative irregularity could be prosecuted as a corruption offence, if committed by an official whose position brings him or her within the scope of DNA’s prosecutorial jurisdictional competence. The Constitutional Court interjected and declared unconstitutional as applied (verfassungskonforme Auslegung) a definition of the crime that would encompasses the breach of administrative norms (as opposed to clear norms of primary legislation), if the irregularity does not produce a significant damage. The decision was criticised as impeding the fight against corruption, notably by Laura Kövesi, the chief prosecutor of the DNA (as she then was), with the argument that, as a result, Romanian citizens had forfeited 148 million Eur.²⁹ This amount was floated on the basis of a computation of the sum-total of prosecutorial assessments, in various files, of the damages produced by the corrupt acts. The stipulation, which was widely bandied about in the anticorruption camp, is normatively fictitious, since it assumes rubberstamp judicial endorsements of the charging acts. Otherwise put, it assumes that the court has no role in the resolution of cases, which is paradoxical, perhaps nonsensical in a traditionally understood rule of law-based state.³⁰ The statement also assumes that no other avenues exist for correcting errors, such as administrative or civil actions, which remained open after partial decriminalization. In the spirit of anticorruption effectiveness, however, the Chief Prosecutor’s statement was perfectly justified. Similarly, attacks by task force prosecutors and occasionally also federal judges on the Supreme Federal Tribunal of Brazil were rife, whenever decisions that curbed in any way anticorruption ambitions were rendered (de Sa e Silva 2020, at 105–106).

2.4 Structural Aspects: Enhanced Autonomy, Prosecution Bias

2.4.1 Political Neutrality and Perverse Politicization: Judicial, Systemic, and Anticorruption Independence

At the institutional level, the principle of the rule of law requires neutral adjudication, guaranteed by independent and impartial courts (Dicey 1885; Raz 1979; Tamanaha 2004). Anticorruption, contrariwise, demands forms of institutional and systemic autonomy deemed instrumental to policy effectiveness. These latter forms of autonomy are not necessarily conducive to judicial independence proper and may collide with it. As the authors of a recent monograph on anticorruption prosecutors in Latin America noted, “processes of institution building ought to carefully consider what kinds of improvements “really existing democracies” can support” (Gonzalez-Ocantos et al. 2023, at 266; see also Prado et al. here).

With a view of producing the trickle-down outcomes of anticorruption, integrity agencies were created with exclusive remit over the prosecution of serious corruption offences, committed by high-level officials. In the specific context of the EU, the prototype was essentially the ‘Romanian model’.³¹ The blueprint rests on a prosecutorial watchdog, the National Anticorruption Directorate (Direcția Națională Anticorupție, DNA), created in 2002 and overhauled in 2005 as a functionally self-contained prosecutorial unit.³² Until 2016, only the anticorruption directorate disposed of its own investigating police force. The DNA has a central unit in Bucharest and territorial sections corresponding to the seats of the Courts of Appeal. Its prosecutorial jurisdiction extends over classical corruption crimes but also assimilated offences. Personal competence covers a long list of officials, ranging from MPs to policemen.³³ The independent agency character of the prosecutorial body was in turn reinforced by an adaptation of the judicial council model (Kosař and Bobek 2007). Whereas the good practice model of the judicial council recommended by the Union and the Council of Europe to new democracies should comprise at least 50% elected magistrates in its membership (the rest could be lay and ex officio members), the ratio is much higher in Romania (14 out of 19 prosecutors and judges, elected by their peers), with prosecutors strongly autonomised vis-à-vis the executive (cf. Prado et al. in this issue).³⁴ The new template perceived as justified in the Romanian case, since conducive to a better pursuit of anti-corruption (Selejan-Guțan 2018).

The blueprint was tweaked in newer generations of anticorruption conditionalities, also in correlation with the degree of perceived corruption attached to the newer peripheries. In Albania, an extensive vetting of the entire judicial system, including the Constitutional Court, was undertaken, relying on decisions made in first instance by a sui-generis, hybrid tribunal, subject to appeal to another hybrid quasi-court, a ‘special chamber’ attached to the Constitutional Court. A similar, comprehensive vetting process unfolds currently in Moldova. In Ukraine, the good practice of independent prosecuting authorities was complemented by the creation of a permanent special anticorruption court, which, although a part of the judicial system, is not jurisdictionally subordinated to the regular, ‘ordinary’ apex court. The presumption in these latter cases was that not only that the political system was tainted (Romania) but that the judiciaries as such were putatively corrupt and could not be trusted to carry out this task (Albania, Moldova, Ukraine).

Structural judicial autonomy has been long noticed to eventually reproduce patterns of political polarization within the judicial system, as shown by the Italian politicization of the judiciary in professedly political correnti (Benvenuti and Paris 2018). In the case of Romania, at the height of the anticorruption campaign, judicial associations were neatly divided and opposed along ideological-political lines, closely mirroring the positions of political parties and coalitions, clad in legalese.³⁵ Law and politics of anticorruption are hard to disentangle from one another in anti-graft on steroids. Judges or prosecutors involved in the crusades, albeit barred from formally seeking political endorsement, do not distance themselves from parties and movements supporting and bolstering their institutional agendas. This is understandable prudentially in the logic of the ‘fight’ or ‘war’ against corruption. By the same token, such alignments undermine the legitimacy of the judicial fight, predicated upon neutrality.³⁶

Since anticorruption presupposes more “flattened” judicial systems (Gonzalez-Ocantos et al 2023 at p. 36), infighting occurs alongside ideological dimensions, but also in terms of jurisdictional tiers, with younger prosecutorial and judicial crusaders battling politicians but also, often, higher-ups in the upper tiers of the court system and the Public Ministry. The Mani Pulite campaign in Italy was represented by its heroes as antisystem fight of the judicial underdog. Polarization as well as the need to communicate effectively and constantly with the media in order to keep the momentum high, inevitably produce a need for judicial “superheroes”. This need goes against the grain of received rule of law understandings of judicial office, which justify independence from politics to begin with. Personalization of institutions is at any rate broadly considered to be in tension with modern RoL and generally liberal-democratic understandings. In Brazil, and Romania, the fight against corruption created forms of ‘judicial populism’. Lead prosecutors such as Antonio di Pietro in Italy (constantly referred to in the press as ‘judge’), Daniel Morar³⁷ and Laura Kövesi in Romania, and Deltan Dallagnol in Brazil and occasionally judges (Sergio Moro, of global renown, Romanian cassation and High Court judges, of lesser notoriety) were lionized by the judicial and political factions monopolizing the discourse, as ‘lone rangers’ (Mota Prado and Rodriguez Machado 2022, at pp. 285–286). This tendency is inherent in anticorruption and its mock-Luhmannian discursive need for reductive, Manichaean dichotomies. Insofar as apex courts curb the effectiveness of the fight against corruption, they are placed under significant pressures, both lower-judicial and political. In Romania, the Constitutional Court and, occasionally, the High Court or the judicial section of the Superior Council of Magistracy have been constantly attacked as friends or fellow-travelers of ‘the corrupt’. In Brazil, the Supreme Federal Tribunal, which serves primarily as a sui-generis constitutional court, was assailed whenever its judgments dented the campaign's effectiveness. In Albania, the Constitutional and Supreme Courts were crippled by the vetting process for years.

2.4.2 Place of Prosecutors, Prosecution Bias, Institutional Partnerships

By structural design, conditionality-driven anticorruption reforms presuppose an enhancement of the role of prosecutors. A high degree of systemic autonomy, flattening of traditional judicial hierarchies, a measure of conflation of the roles of judges and prosecutors are conditions for the possibility of anticorruption. In Italy, where Tangentopoli erupted for endogenous reasons and unfolded primarily within internal incentive structures, these institutional preconditions predated the campaign (Nelken 1996; Guarnieri 1994; Sberna and Vannucci 2013, 581–582). In Brazil, as well as Latin American countries where Lava Jato chapters unfolded robustly (Ecuador and Peru), endogenous reforms were reinforced by conditionalities nudging towards judicialization, reinforced autonomy, and bureaucratic specialisation of task-forces within Public Ministries (Gonzalez-Ocantos et al. 2023, Mota Prado et al. here).³⁸

In classical rule of law hermeneutics, the tendency toward reinforcing across the board prosecutorial roles and heaving law enforcement to a quasi-judicial role are not unproblematic. The status of prosecutors has been commonly regarded as inferior to that of judges, since the court's position reigns supreme.³⁹ International guidelines recognized the distinction until relatively recently⁴⁰ and prosecution bias has traditionally been considered a vice, not a virtue. Anticorruption upsets these assumptions, with unintended paradoxical consequences.

To wit, the first monitoring report by the European Commission on the Romanian CVM noted a failure of the judges to appreciate the importance of anticorruption and apply harsh, deterrent sentences on defendants in high-profile cases (as required by the prosecutors in the charging act).⁴¹ In a normative reading, however, for judges to apply harsh sentences programmatically, in one type of cases, amounts to a denial of justice and dereliction of their rule-of-law driven duty to judge impartially each case, according to the law and facts. In a revolutionary Brazilian Supreme Tribunal judgment accepting the General Prosecutor’s plea for a very lax reinterpretation of parliamentary immunities, Justice Carmen Lucia reasoned in obiter that immunity, impunity, and corruption would not be allowed by courts to “kill the renewed hopes of the Brazilian people.”⁴² In 2013, the Romanian President of High Court of Cassation and Justice (as she then was; currently a Constitutional Court justice) pledged, during the festive presentation of the anticorruption prosecutorial unit annual report, the support of all judges for rule of law and national security and declared herself “a reliable partner, completely and unconditionally” of the anticorruption prosecutors.⁴³ The judge was criticised for so doing, a reproof which is understandable in a classical reading key but not according to war on crime imperatives. Partnership with prosecutors tendentially means, in the judicial context, accepting relaxed interpretations of criminal legislation and constitutional criminal law guarantees, as a means to the end of reaching the goal of a corruption-free society.

In Brazil, sub rosa collusion with the judges was key to both the initial result-oriented success and eventual discredit and downfall of OCW. In Romania, where the position of prosecutors, particularly anticorruption prosecutors was enhanced, tensions increasingly grew between factions within the judiciary, reproduced also within the High Council, whose autonomy was, paradoxically, supposed to function as a second-order guarantee for the fight against corruption. Judges, especially the higher-level judges dominating the judicial section of the council, supported a reform that eventually removed prosecutorial jurisdiction of the anticorruption agency over members of the judiciary.⁴⁴ This opposition was based more precisely on the fear that the autonomous anticorruption prosecutor’s office, by opening files on judges or by keeping artificially open files initiated on the basis of complaints, pressured judges to issue ruling favourable to the prosecution in high-stakes anticorruption cases. Such concerns are substantiated by intriguing figures in Judicial Inspection reports, showing that virtually all former members of the CSM and scores of high-ranking judges had criminal files with the DNA, either opened sua sponte or on the basis of complaints and then left dormant for years. Between January 2014 and July 2018, 1459 criminal files regarding prosecutors (out of which 163 ex officio) and 1443 concerning judges, out of which 113 were opened suo motu. Numerous irregularities were found, including large numbers of files kept in active status artificially and failures to notify suspects after the closing of a file or after a surveillance warrant was executed, which did not result in a charge.⁴⁵

Related and more problematically, anticorruption was ‘securitized’ (Hogic 2023). On the basis of a still classified 2005 National Security Council (Consiliul Suprem de Apărare a Țării, CSAȚ) decision, corruption was declared a threat to national security. The act opened the way for cooperation, via ‘protocols’ (memorandums), between apex judicial institutions and the Romanian Intelligence Service (SRI). One of the protocols and a provision in another were eventually declared unconstitutional by the Romanian Constitutional Court (CCR), arguing that they created the premises for an occult justice system.⁴⁶ Prima facie, the documents are dry and technical but mention is made in one of them of “common operative teams” including prosecutors and intelligence officers.⁴⁷ In sync with the fight against corruption, the budget of the domestic intelligence agency increased significantly.⁴⁸ Inter-institutional task forces and enforcement cooperation with are key to anticorruption success and to a certain extent standard and even model practice in campaigns but introduce additional legibility imponderables to an already burdened equation (securitization in particular: additional opaqueness, selectivity, etc.).

3 Apolitical, Populist, and Geopolitical Anticorruption

The idea that robust anticorruption constitutes the keystone of the rule of law is appealing and chimes with instinctive representations about how institutions should operate in liberal constitutional democracies. Rule of law is a core value, whereas corruption is, as we all know, evil. Anticorruption is therefore presented as an apolitical program. Intuitively, it is easy to understand how and why it appears so: majoritarian politics, of whichever ideological leaning, does not equal graft. Nobody does, nor should anyone like corruption.

In discursive practice, the ‘neutralization’, de-politicization of anticorruption builds however on a wealth of idealizations, ignoring for instance the extent to which privatization or deregulation reformulate actions that could have been understood in terms of corruption as free opportunity or right.⁴⁹ More importantly, a tilt to the neoliberal right was embedded in the genetic code of such programs since the mid-1990s, when the law and development agenda was focused on removing indigenous corruption as a transaction cost hindering the opening of the peripheries to the global economy (Kotkin 2002; Humphreys 2011; Gonzalez-Ocantos et al 2023, at 41). Starting from the twin premises of a corrupt political system, reinforced by the campaigns, and of a pure, uncorrupted, stateless market, it is easy to conclude that the state is irredeemably corrupt and thus that no state equals no corruption.⁵⁰

In peripheral actualization, anticorruption campaigns are invariably hijacked and weaponized, partly as a result of the nature of anticorruption as such and the need of crusaders to secure broad support (Gonzalez-Ocantos et al 2023), partly as a consequence of the particular set of polarisation fault lines of peripheral systems, for which anticorruption law and anti-graft politics will act as powerful catalysts (Kiss and Székely 2021, Mungiu Pippidi 2018). As regular politics are recast and translated into this idiom, anticorruption politics will result in a competition for the selectively “successful imposition of the corruption label”, meaning the projection of unreasonable expectations of purity on political opponents.⁵¹ In both Romania and Brazil, anticorruption as rule of law was appropriated by centre-right forces and fused at the hip with the ostensibly unrelated trope of anticommunism.⁵² In the local contexts, socially polarised societies, this meant in the practice of the opposition to any form of redistribution as ‘communistic’, performed by ‘corrupt politicians’, and addressed to ‘captive electorates’.

Once unreasonable expectations are disappointed, campaign-style anticorruption populism tends to be replaced by full-fledged populism. After the consummation of Tangentopoli, the dismantling of the mainstream parties in Italy gave way to a long line of populist politicians. In Brazil, Lava Jato virtually eased Jair Bolsonaro into office, as a direct result of Lula da Silva’s conviction and Dilma Roussef’s impeachment. The aftershocks of the OCW Peruvian chapter apparently produced similar effects (Baraybar and Gonzalez-Ocantos 2022), reinforcing fragmentation and absenteeism in a context of pre-existing general cynicism, fragmentation and a weak party system, low levels of trust. In polarised environments (Italy, Romania, Brazil), the public-spirited promise of a cleaner society is eventually disappointed, with whatever optimism remains “present among those who derive satisfaction from seeing their figures of hate parading through the courts” (Gonzalez-Ocantos et al 2023, p. 235).

Additional falsification opportunities are presented by EU-driven reforms, where the anticorruption agendas are equated with the pursuit of the rule of law and also with the benefits of European membership. In Romania, for example, where the sizeable diaspora votes overwhelmingly right, overseas Romanians were narratively conscripted into a presumably clean and ‘European’ centre-right fight against the ‘corrupt’ centre-left (Iancu 2023). This was possible as long as a stable coalition between the traditional centre-right and a new urban middle class party founded on an anticorruption platform monopolized the anti-graft narrative. As soon as a populist, ultraconservative, Euro-sceptic alternative was on offer in the Covid-19 pandemic context, a sizeable portion of the diaspora vote promptly migrated to that party, thus negating overnight a mainstay of the staple anticorruption discourse.⁵³ This development could have been anticipated. The Manichean ethical language of anticorruption both obfuscates and repurposes bundles of peripheral contradictions under a veneer of rule of law tropes (longing for clean politics through impartial law, desire for progress, hopes for justice and collective redemption). Behind elated linguistic façades lurk leanings towards stratification and exclusion, penal or judicial populism (Pratt 2007) or punitivism (Mota Prado and Rodriguez Machado 2022, Mota Prado et al. in this issue) and more generally legal instrumentalism of all kinds.⁵⁴ These tendencies may reproduce and reinforce deep-seated local inclinations towards bad populism or illiberalism, often shared by local legal elites also (De Sa e Silva 2020; Brandao 2022).⁵⁵

Romanian anticorruption ebbed more slowly, as a consequence of its being pegged unto a formal conditionality, the CVM. This raises the issue of whether the current structure of the EU can nurture the beneficial elements of anti-graft policies (dismantling networks of power and undermining political impunity) and simultaneously control their pathological potential (tendency towards political populism and legal instrumentalism). The Commission is, by institutional set-up, predisposed to policy streamlining and prioritizing. No longer started the rule of law to be understood primarily as effective anticorruption than previous political acquis criteria began to be reinterpreted through the new lens. One example should suffice to illustrate this reordering. In the pre-accession period, as early as 2001, the Commission insisted in its Romanian monitoring reports that libel and slander should have been decriminalized. The supporting argument was that criminal charges would severely hamper muckraking journalism, which was essential for the pursuit of ‘robust’ anticorruption.⁵⁶ Eventually, in 2006, the Criminal Code of 1969 was amended by Romanian authorities to decriminalize libel and slander. The explanatory statement accompanying the bill makes explicit reference as to why the change was made, i.e., to “incorporate European standards and secure accession”.⁵⁷ Eventually, the Constitutional Court of Romania interjected and decided that the protection of dignity was unquantifiable in money (i.e., tort damages) and required recriminalizing libel and slander.⁵⁸ For a while thereafter, it was unclear whether the CCR decision effected re-criminalization (an abrogation of the abrogation). Nonetheless, once a new criminal code was adopted, which did not contain the crimes, the entire issue became moot. For a while, a general cross-party consensus existed in Romania to accept anticorruption as a neutral, apolitical public good. As chinks and cracks appeared in the anticorruption narrative⁵⁹ and as the judiciary itself developed friend/foe positionings, with activism on both sides, muckraking journalism started to affect anticorruption ‘heroes’ as well, including judges and prosecutors. The Commission changed its narrative accordingly and started to advocate for restrictions on free speech “affecting judicial independence” (read: targeting anticorruption practices and judges and prosecutors involved as actors or active supporters in the “fight against corruption”).⁶⁰ In its 2021 rule of law country report on Romania, the issue is revisited even more forcefully. Now, Romanian authorities are themselves castigated for their failure to criminalize libel and slander back in 2009:

“The legislation meant to protect people’s dignity and reputation requires those interests to be balanced against the freedom of expression. MPM 2020 reports inconsistencies in the interpretation of the law and the gravity of the sanctions applied against journalists in that context. However, ‘libel’ and ‘insult’ have been decriminalised when the Criminal Code was [sic!] revised back in 2014.”⁶¹

Dissonances, including the formal correctness of this statement,⁶² could have certainly been handled better. However, the Commission is essentially not to blame for the contradiction, which is structural, embedded in the logic of rule-of-law as the advancement of the fight against corruption. The fundamental right to freedom of expression and the meaning of a free, pluralist media are subordinated to the imperative of the ‘predicate’ value defining the policy. The right to freedom of speech is therefore not a subject of analysis in and of itself, a self-standing institution surrounded by qualifications, guarantees, implicit and explicit norms (as in constitutionalism).⁶³ Its interpretation fluctuates as a function of the degree to which it advances or not the rule of law understood as anticorruption.

The evidence is also mixed as regards consistency in the implementation of the identically-defined post-accession mechanism in Romania and Bulgaria. Unlike its neighbour and CVM twin, Bulgaria did not create the autonomous institutions needed to implement effective repressive anticorruption policies. No high-ranking politician was convicted on an anticorruption charge. Against this backdrop, even though the country fared worse than Romania in corruption perception rankings,⁶⁴ the 2019 CVM country report recommended lifting the conditionality only for Bulgaria.⁶⁵ This happened months before a corruption scandal and anticorruption demonstrations and after years of ignored criticism, including criticism by the country’s Supreme Court President, of the way in which CVM reports whitewashed or ignored local dysfunctions.⁶⁶ Prosecutors have figured prominently also in the understanding of Bulgarian rule of law, as a result of path-dependencies, reproduced also in the configuration of the judicial council.⁶⁷ One Bulgarian Prosecutor General declared that “above him there [was] only God”. His current successor, Ivan Geshev, formally independent and practically instrumental in settling the Prime Minister’s scores with the Socialist President Radev, has presented himself verbatim as “an instrument in the hands of God”.⁶⁸ Such representations of judicial roles hardly correspond to modern rule of law ideals, nor did actual implementation correspond to the stated CVM objectives. Nonetheless, as long as Prime Minister Boyko Borisov could keep the country relatively stable, neither corruption scandals, nor allegations of abuse and graft or the lack of the CVM-required institutional framework to combat corruption appear to have mattered in the monitoring.⁶⁹ Borisov ‘reigned’ from 2009 to 2021, with brief interruptions, over centre-right coalitions dominated by his party (GERB).⁷⁰ As the discrepancies between the relative Union positions on Bulgaria and Romania show, what the Commission valued above all, in a broader scheme of things, was peripheral stability, whether achieved by anticorruption with a centre-right twist in Romania or by neoliberal political means with prosecutors in attendance (in Bulgaria). The only rational implication of the discrepancy is that neither the rule of law nor anticorruption as the rule of law were in effect paramount but rather, to use Michael Wilkinson’s portmanteau, a ‘geo-constitutional fudge’ (Wilkinson 2021, at 212 ff). The Romanian mechanism was eventually lifted abruptly by the Commission midway through the 2022 Schengen enlargement application, made by a grand-coalition government of the Social Democrats (portrayed for over a decade as the party of corruption) and national-liberals (the main centre-right party, which had in previous coalitions successfully depicted them so).⁷¹

Anti-sleaze policies are pursued currently in the Western Balkans and the newest candidate countries of Moldova and Ukraine. Albania, flagship of the Western Balkan candidates, underwent a vetting system of its entire judiciary, to the point of being left without functional Constitutional and Supreme Courts for years. The vetting process is still unfolding but early signs raise doubts concerning the even-handedness of its implementation.⁷² Systems predominating in the new candidate countries have been described as stabilocratic in nature. The question is worth posing, in the light of accumulated facts, whether RoL-anticorruption, used now selectively as a proxy for stability, can create the preconditions for Member States that can be reliably described as law-bound and democratic, rather than consolidate existing stabilocracies.

4 Center/Periphery Dynamics and Reverse Conformities

Whereas anticorruption populism remains contained at the periphery, being fused at the hip with peripheral specificities, the legal externalities of anticorruption can and do migrate to the center.⁷³ Once the fight against corruption became a global drive, some peripheral tendencies may drift backwards, as evidenced by the recent push towards securitization in the United States (Hogic 2023). In the common constitutional space comprising overlapping Council of Europe and EU guarantees, reverse migration is embedded in standards. General applicability is a default position, resulting from the EU post-accession formal equality of states and ECtHR needs of judicial consistency.

In soft EU law, it is revealing that one of the four pillars of the generally applicable Rule of Law Mechanism, as re-conceptualized by the Commission in 2020, is anticorruption, initially understood as a peripheral corollary of the concept. With the exception of Italy, anticorruption was neither on the political or judicial agendas of the pre-Copenhagen EU-15 member states, nor understood in legal doctrine to constitute a practical corollary or derivation of the notion.⁷⁴

The CVM floated in a soft law limbo for most of its duration, but inner-judicial polarisation led to a flurry of references towards the tail-end of this conditionality’s application. Three references dealt for instance with lower courts’ resistance to Constitutional Court decisions making dents in the effectiveness of the fight against corruption. One reference questioned CCR decisions severing, primarily on rule of law grounds, ‘securitisation’, i.e., the cooperation of anticorruption prosecutors with the domestic intelligence service, the SRI. Another challenged a constitutional decision imposing on the High Court the obligation of choosing all the members of five-judge criminal panels by lot. A third reference impugned a Constitutional Court decision which required all courts to set up specialized anticorruption panels, on penalty of constitutional nullity. The third constitutional solution was questionable (Iancu 2022) but the notion that intelligence agencies should not take part in criminal prosecution and the right to a lawful and thus impartial judge, are unproblematic from a traditional rule of law perspective. Against the grain of the AG’s recommendations, the CJEU joined these three distinct issues and adjudicated on them collectively.⁷⁵ The reasoning emphasized unidirectionally the rule of law/anticorruption nexus under the conditionality and the paramount need to ensure effectiveness in the fight against corruption (as rule of law, subsumed under the CVM, in turn justified by reference to Art. 2 TEU).

Cross-hybridization of standards has brought anticorruption before the Strasbourg Court as well. Two recent examples should suffice to illustrate tendencies analysed in Sect. 2 of the paper. Kövesi v. Romania⁷⁶ is a forced extension of the much more visible Baka v. Hungary⁷⁷ precedent. The judgment vindicates the rights of the demoted former DNA Chief Prosecutor to freedom of speech under Art. 10 of the Convention and free trial rights under Art. 6. The difference between the two cases, residing in a conflation of the positions of prosecutors and judges, went however largely unnoticed. This augmentation of the status of prosecutors, which already transpires into unqualified soft-law references to ‘prosecutorial independence’, goes against the grain of received practices. Many paradigmatic jurisdictions assign prosecutors to a strictly accusatorial role, sometimes subordinating them explicitly to the executive branch (Germany, Austria, the Netherlands). Few Western systems analogize the statuses of prosecutors and judges (Italy, France, Romania, Bulgaria). Those that do usually encumber the former with a wealth of qualifications (notably, France).⁷⁸

In Xhoxhaj v. Albania, the ECtHR had to decide on the conventionality of an EU anticorruption conditionality a vetting system for judges and prosecutors.⁷⁹ The vetting procedure was set up under Venice and EU Commission’s oversight, to prepare Albania for rule of law consolidation in view of future EU membership and ensure the effectiveness of the horizontally integrated Special Anti-Corruption Structure (SPAK). The vetting process includes, first, a determination by an Independent Qualification Commission, which is a sui-generis tribunal mixing prosecutorial and judicial attributions and, second, an appeal to a specially-created chamber (Special Appeals Chamber, SAC), attached to the Constitutional Court. Throughout the vetting process, the burden of proof is shifted to the individual. A negative decision results in a lifetime ban on re-entering the profession as judge or prosecutor; if a person resigns before a determination is made either way, vetting is discontinued and the ban extends for only fifteen years. In the factual context of the case, vetting (going all the way back to 1995, when she had been appointed as a judge of the Tirana District Court) resulted in the disqualification of the applicant, a former justice of the Albanian Constitutional Court. Mrs. Xhoxhaj was in essence stripped of her office as a result of her failure to declare an off-plan contract for the purchase of a 101 sqm apartment and to fully justify the purchase (she could not justify liquid assets to the tune of 15.750 EUR in Albanian Liras). Xhoxhaj argued, i.a., that her partner had gained most of those moneys while working part-time on the black market, as a student in Italy during the 1990s (as, in fact, many Albanians do and did). According to the applicant, the procedure infringed on her due process rights (Art. 6 ECHR, criminal limb) and, by effectively denying her access to the profession of a lawyer, on Art. 8 ECHR (right to private and family life). These were not unreasonable inferences, considering the lengths to which the Court had went in prior cases to protect positions of judicial (Baka) and prosecutorial (Kövesi) leadership under the civil limb of Art. 6. An earlier judgment on a Ukrainian application seemed to control the solution under Art. 8.⁸⁰ The Court found however no infringement and insisted on the fact that Albania is a sui generis case (read: the country is so corrupt that, in order for it to become European, anything goes for now).⁸¹ By the same token, the departure from precedents is justified on principle, normatively, by filling the gaps with soft law (Venice Commission reports, EU Commission reports, GRECO reports, etc.). The applicant’s arguments (shared by a dissenting member of the ICQ and two dissenting judges) that the amounts were in context diminutive, the sanction disproportionate, and the expectations unreasonable, were for instance deflected, Van De Carr-like, by recourse to the Bangalore Principles of Judicial Conduct. According to the latter, a judge should be “above reproach in the view of a reasonable observer” in order to “reaffirm the people’s faith in the integrity of the judiciary.”⁸²

Two more recent judgments, Besnik Cani v. Albania⁸³ and Sevdari v. Albania,⁸⁴ put minor jurisprudential dents in the landmark case, while raising big questions regarding the domestic process as such. The applicants were vetted and removed not only from their offices but thus also and perhaps most revealingly from positions on the High Prosecutorial Council. Both judgments find violations of Art. 6 (1) and 8, respectively, without however fully vindicating the plaintiffs.⁸⁵ Cani was stripped of his office by a panel of the SAC in which one of the judges was unfit to serve, and later convicted for forging his application documents. Sevdari was removed from office because of a trivial breach of asset disclosure rules, consisting of the failure of her husband to prove conclusively place of taxation on income he had earned abroad before they were married, before she was appointed as prosecutor.

5 Conclusion: Quick-Fix Solutions?

Corruption presented itself as an easy shorthand for describing complex patterns of peripheral underdevelopment. Posing the problem thus invited the quick-fix solution of anticorruption policies to resolve the problem and heave the periphery to the level of the centre. Corruption is a serious pathology that needs to be addressed. Paradoxically however, a single-minded focus on anticorruption, regarded as a panacea for peripheral stabilization/redemption purposes is not a solution.

Difficulties are exponentially confounded when repressive policies centred on quantifiable results are decked in the mantle of the rule of law. Unlike anticorruption, the rule of law is a normative concept that has, for the longest time, been informed at its core by liberal-constitutional representations regarding the defence of the individual against the state. Policies are by definition instrumental, result-oriented, and therefore easy to instrumentalize. This is particularly the case in systems where policies have been historically subjected to instrumentalism of various kinds and forms and where, due to deep-seated structural disincentives, normative vocabularies of liberal constitutionalism have not been internalised. The effects have been scrutinised comparatively in both conditionality-induced anticorruption environments (Romania, Bulgaria, Albania) and in the context of endogenously-driven campaigns with (Brazil) and without (Italy) international leveraging. Pathologies are comparable across case selection types, with only two noticeable distinctions. First, in the absence of an external leverage campaigns peak and lose momentum more quickly. Second, in politically unstable jurisdiction anticorruption is weaponised and acts as a both a foil and proxy shorthand for other cleavages (Romania, Brazil), further destabilizing the system, whereas in stabilocracies (Albania)⁸⁶ it appears, at least for the time being, to further entrench politically dominant factions.

In tightly integrated quasi-constitutional orders, as the EU/CoE, one could imagine in the abstract a possibility of pursuing anticorruption policies as periphery-adapted conditionalities, while at the same time restraining their dangerous potentials through rule of law monitoring. Ideally, effective anticorruption policies and normative rule of law imperatives could be reconciled and brought into accord, reaching a virtuous equilibrium. For the time being, as the record shows, this potential has not materialized, partly because, at least at the current stage of integration, such monitoring and coordination tasks outstrip the structural potential of supra- and international institutions. More recently, anticorruption has become a stabilization instrument, where local context is amenable to its usage. This explains the EU Commission’s equanimity towards Bulgaria, where in spite of a very poor record and very clear legal basis in the CVM, the Union executive adopted a laissez-faire stance. Contrariwise, the Commission offered carte blanche endorsement of Romanian anticorruption, where monitoring simply rubberstamped and legitimated the local anticorruption agenda. In both cases, the conditionality as such was lifted abruptly, even though anticorruption CPI/BPI rankings have remained more or less the same with or without anticorruption. Thus far, certain negative externalities of the conditionalities have also boomeranged as ‘reverse conditionalities’. Among these, the tendency to overemphasize prosecutorial autonomy at the expense of judicial independence proper and more generally to prioritize effectiveness across the board at the expense of rights are especially problematic.

The paper has counselled care in handling quick-fix democratization solutions, without in any way questioning that lawlessness and impunity are mortal dangerous for the rule of law and constitutional democracy. In particular, I have argued that anticorruption should be pursued in a horizon including administrative prevention and enforcement (e.g., wealth declaration transparency, procurement rules, incompatibility and conflict of interest disclosure and sanctioning, and the like) and criminal law, ex post repression. Anticorruption must be prosecuted, more precisely, as a policy framed by the rule of law, carefully balanced against normative liberal-constitutional limitations.