Alexandra Mercescu
In the sea of uncertainty that we are currently navigating, at least one aspect seems beyond doubt: countries have responded for better or for worse with local answers to a universal threat. To recall that France decided to keep its wine shops open as they were considered indispensable to the life of the nation or that some states in the USA did the same in relation to gun shops as they regarded them to be vital is merely to offer some anecdotical examples of how localism gained the upper hand in the handling of this crisis. Nonetheless, the analysis can surely be taken further so as to unearth, like in the case of the country where I am living Romania, some deep-seated manifestations of a culture that is not without critique and that have become more easily visible now, against the background of the pandemic and its corresponding legal and political consequences.
For years, Romania strived to build for itself an image of a country that finally resolved to efficiently fight corruption. Indeed, under the patronage of the European Union which monitors the progress made by the country, in the last decade, Romania assumed anti-corruption as one of its main goals and therefore implemented a series of measures to that effect. Consequently, the independence of the judiciary became much stronger than in the aftermath of the Revolution and prosecutors felt encouraged to go after high-profile politicians who were long suspected of crimes involving public money. The chief of the National Anti-Corruption Prosecuting Office (Laura-Codruta Kövesi, who was recently elected head of the newly formed EU Prosecutor’s Office) and the prosecutors working under her direction were soon made into public heroes. Kövesi’s abusive dismissal from office by the former ruling party in 2018 was a matter of high concern at the time not only among liberal elites but in society in general. With prosecutors perceived as the nations’ saviours, a significant part of the public came to see penal justice as the solution to all evils. There was a sense in which prosecuting and convicting represented more than delivering justice; they were seen as setting the country straight, bringing order and efficiency where politicians were unable or unwilling to do so.
Notwithstanding the indisputable merits of the criminal justice system, a significant part of the population, including many legal professionals were ready to admit that at least some of these achievements were probably obtained at the price of excessive if not dubious investigative methods, including perhaps illegal mass surveillance techniques (still a matter of controversy). All in all, these problematic undertakings denote an authoritarian drive (even though in many respects different than the one perceptible in the early ‘90s which was a direct translation in practice of the Criminal Procedure Code itself and of a legacy according to which the prosecutor was playing an exacerbated, all-powerful role in the criminal trial). However, in line with the ‘law and order’ rhetoric, the public didn’t seem particularly bothered by these potential transgressions.
It is not surprising then that in a context such as today’s crisis, which has nothing to do with corruption, there is a ‘demand’ on the part of the public opinion for the use of criminal legal tools and a corresponding ‘supply’ on the part of prosecutors. Indeed, as soon as the crisis reached Romania it became clear that criminal law will be part of the arsenal put in place in order to contain the disease. People were placed under investigation or criminal files in rem were opened for such acts as negligent behaviour susceptible of transmitting the virus, lying about one’s travelling history or disclosing what was not yet public information about the shutdown of schools, a deed deemed susceptible of spreading the panic. In fact, the media’s initial coverage of the situation seemed to operate with two main indicators: the somewhat obvious number of cases/death toll and the number of criminal cases to be investigated in relation to the disease. In addition, the sometimes inexact rendition by the media of the criminal issue involved, coupled with the variety of behaviours which seemed to be punishable under criminal law, easily left the impression, in a typically Kafkaesque note, that one could be both prosecuted for doing X (going to work as a doctor who suspects that he/she might be infected) and for not doing X (refusing to go to work as a doctor).
Perhaps, nowhere was the penchant for resorting to penal means more troublesome than in its application to the medical system. When a hospital in the northern part of the country became a zone of high-rate infection with many members of the medical staff testing sick it was decided to dismiss the manager, open a criminal investigation and institute a military administration that was supposed to ‘solve’ the situation by bringing in the rigours of military rule. This generated an outrageous situation, indeed a borderline case of degrading treatment, which unfortunately did not seem to capture the public’s attention. Allegedly, the regular doctors were made to shower collectively in special outdoor units of decontamination arranged by the provisional military manager and walk naked through the yard in the morning to their equipment rooms[1]. Needless to say, after the hospital’s ‘grand’ reopening under the ‘exemplary’ military management, other cases of COVID have been confirmed among the staff. So much for the disciplinary narrative!
Not only the voices condemning these oppressive measures went unnoticed but in the face of resignations by a number of doctors who were claiming to fear for their life or refused to go to work without having adequate PPE (personnel protection equipment), the authorities in charge of the crisis announced that they were taking into consideration to temporarily militarize all medical personnel so that doctors can be eventually accused of defection, placed under immediate prosecution and judged by Military Tribunals[2].
Of course, the behaviour of a doctor who runs away when the people need them the most is morally condemnable. And, surely, it must be taken into account that the Romanian medical system fares the worst in the European Union and the system had to be defended from collapsing. However, while Italian and French doctors were being cheered for their wearing work, one can only wonder if, in Romania, efficiency was to be achieved by making doctors work under the pressure of being locked up in prison. Central and Eastern European countries are well-known for their citizens’ lack of trust in institutions and among themselves. To encourage the public to expect criminal action as some sort of miraculous cure of all plagues (COVID included) is certainly not to build social cohesion.
The state of emergency reignited discussions about the legitimacy of a Hobbesian state where the absolute, unfettered sovereign is to take whatever measure is necessary to protect society[3]. Paradoxically, in wanting to be a Hobbesian sovereign that protects citizens from each other (the Other being here the bearer of the virus), the Romanian state ended up instituting a war of all against all (patients vs. doctors, doctors vs. the state, doctors vs. doctors, first-order Romanian citizens vs. second-order Romanian citizens). Fighting nature, it brought back ‘the state of nature’.
I read in all these problematic interventions a form of penal (or better military) populism. Without exaggerating the need to squeeze the ‘reality’ into pre-established theoretical labels, there is indeed a sense in which what happens could be qualified as penal populism to the extent that penal populism gets defined as ‘a way of ensuring that policy in this sphere is more reflective of the public will than values of criminal justice establishment’[4]. In any case, irrespective of labelling, the emphasis on criminal law as a suitable tool for dealing with anything from corruption to COVID should strike one as perplexing given the traumatizing experience of the former regime’s repression through law. I do not have the statistics with me, but a fair guess would be that more than 50% of the population agreed with police brutalizing Roma communities for having broken the lockdown rules. Also, according to a poll conducted by a newspaper on a lot of 1000 people more than 66% declared themselves in favour of the militarization of hospitals, which dovetails with the high levels of confidence the public displays towards the Army[5]. These examples are evocative of the attitude that I fear is now embedded in Romanian (legal) culture. Additionally, the acceptance of violence towards Roma people for ‘correcting’ misbehaviour speaks of another feature of Romanian society, namely its ethnonationalism. Indeed, from the very start of the epidemic when hundreds of thousands of Romanians living and working abroad returned home (now the figure is estimated at more than 1 million), the Romanians ‘inside’ the country felt reassured in concocting a story of the Other, the foreigner, the no-longer-Romanian Romanian who brings the plague from across the pristine national borders.
By reacting in this authoritative manner (and I am not even discussing the separate issue of military ordinances through which the country has been ruled in this period of emergency), by posing on society a criminalizing omnipresent eye, the state proceeded with its long history of ‘connivance between law, politics and military’ that goes back to the ‘devaluation of liberal regimes of legality during the interwar and at least in the early years of the postwar period’[6]. It also gave expression to a self-deprecating ethos that has been haunting Romanian society since time immemorial: we are ‘savages’ who know of no discipline and who therefore have to be governed by pure force.
This is not to be read as an indictment of local solutions. As paradoxically as this might sound, politically speaking, the pandemic is, after all, a national, regional or even local affair and there is for sure no right answer in tackling the crisis (moreover, to be fair, the restrictions imposed in Romania were not even among the harshest). But hard times have the great merit of laying bare some of our deep-rooted assumptions, convictions, inertias. In the Romanian context, penal populism, together with nationalist discourses, emerged as particularly problematic aspects in addressing the coronavirus crisis bearing traces of old (authoritarian) and newer (anti-corruption) history that does not cease to mould the public’s understanding of state power.
[1] https://www.libertatea.ro/stiri/medici-spital-suceava-general-ionel-oprea-2946349; https://www.hotnews.ro/stiri-coronavirus-23772082-coronavirus-romania-avem-dreptul-judecam-medicii-care-dau-demisia-fata-pandemiei-covid-19.htm.
[2] https://evz.ro/decizie-de-ultima-ora-pentru-medici-se-vorbeste-despre-mobilizarea-acestora-in-armata.html.
[3] David Runciman, ‘Coronavirus has not suspended politics – it has revealed the nature of power’, The Guardian, 27 March 2020, https://www.theguardian.com/commentisfree/2020/mar/27/coronavirus-politics-lockdown-hobbes.
[4] John Pratt, Penal Populism, London, Routledge, 2007, p. 14.
[5] https://www.bursa.ro/sondajul-bursa-doua-treimi-in-favoarea-militarizarii-spitalelor-o-treime-contra-81713934.
[6] Cosmin Cercel, Law, ‘Politics and the Military: Towards a Theory of Authoritarian Adjudication’ [on file with the author].