Transatlantic Politics

The complacency of EU institutions regarding property rights in Eastern European countries cements the post-communist oligarchy, argues Karl Peter Schwarz, journalist at Frankfurter Allgemeine Zeitung, in a speech held at the European Ressource Bank in Bucharest on September 14.

There is no doubt that the communists robbed properties, killed the owners or put them in prisons, annihilated a whole class and thus violently destroyed the spontaneous order of the free market society. The only way to address this injustice after the failure of their bloody social experiment would have been the restitution of the stolen property to the legitimate owners or their heirs, a real and fair restitution, with no restrictions, regardless of nationality, ethnicity, language or religion. Eleven years ago, the Council of Europe adopted a resolution (no. 1096) and warned against the dangers of a failed transition process:

At best, oligarchy will reign instead of democracy, corruption instead of the rule of law and organized crime instead of human rights. At worst, the result could be the "velvet restoring" of a totalitarian regime, if not a violent overthrow of democracy. In the worst case, the new undemocratic regime of a bigger country can also present an international danger for its weaker neighbors.

Regarding restitution, the Council of Europe advised

that property, including that of churches, which was illegally or unjustly seized by the state, nationalized, confiscated or otherwise expropriated during the communist totalitarian regimes in principle be restituted to its original owners in integrum, if possible, without violating the rights of current owners who acquired the property in good faith or the rights of tenants who rented the property in good faith, an without harming the progress of democratic reforms. In cases where this is not possible, fair compensations should be given.

Unfortunately, this didn't happen, or it happened only partially. 

The European Union has no problem with this: it excluded the monitoring of property and restitution legislation from the political criteria imposed to EU candidate countries. The denial or restriction of restitution leads to several negative consequences. If you don't give back the property to the legitimate owner or their heirs, you make way for greedy former communists who try to compensate their loss of political power with economic dominance. This contributes to the lasting power of the communist establishment in post-communist countries, which distorts competition and allows corruption and graft to flourish. 

Yes, there is no more communism, but the communists are still in power. Sometimes they call themselves socialists, or social-democrats, sometimes liberals or even conservatives. In the meantime the old communist ties between state and companies have been inverted. Before, it was the party and the state which controlled and captured the economy. Now, the network of oligarchs captures and controls the state, the government and the political parties. This is one of the real successes of graft and corruption, the second being of course Big Government.

Post-communist oligarchies represent a collective security risk as well. They can be used and they are being used by a foreign power which tries to regain the influence it once had in this part of Europe. The old communist networks are the natural partner of this foreign power. We have witnessed these days how a Romanian oligarch sold an oil company to the state-run energy company of a foreign state. (see also Kazakhstan sets foot in the EU and Who is behind KazMunayGaz?) What happened was the re-nationalization of the oil company, the only difference from the communist era being that this time, ownership was given to a foreign state. 

Last but not least, the denial of property rights to the legitimate owners undermines the legal order and the rule of law. In order not to give back stolen property, the state does not hesitate to manipulate and undermine the legal order. The government interferes in court proceedings, falsifies documents, controls and puts plaintiffs and lawyers under surveillance. All this doesn't bother the EU institutions, which cover these crimes with a veil of silence. Whoever acknowledges that liberty reigns only in a society where no one's property is molested, violated or taken over by someone else, will understand that the battle for private property rights and the rule of law is all but won in the European Union.

Karl Peter Schwarz offers several examples form the Czech Republic, among which the most prominent is that of Prince Kinsky. Born in 1936, the prince was a child when he inherited the fortune of his family. His father died in 1938, his mother emigrated in 1940 to Argentina, with all her children. Among her papers, after she died, Prince Kinsky found his Czechoslovak passport, based on which his Czech citizenship was re-confirmed. 

The first 5 of 157 claims were successful. The Czech Civil courts confirmed in 2003 that the state had assumed ownership with no legal grounds. Then the socialist Minister of Culture rang the alarm. Politicians from all political parties got together to debate what to do in order to avoid the misuse of what they called "a few formal discrepancies". The Government created a 30 man Special Unit, named "Majetek" (Property) to block all property claims. This specialized police unit focusing on aristocratic restitution investigation asked the intelligence service in 2004 to collect evidence in Austrian and German archives against prince Kinsky. Czech police wiretapped in 2004 not only Frantisek Kinsky, but also lawyer Jaroslaw Capek and recorded the calls between Kinsky and his lawyer, which are considered inviolable. A Czech court approved the wiretapping.  In the meantime the Parliament passed a so-called Kinsky law which enables the state to interfere in ongoing court proceedings with restitution plaintiffs, who are so rude to request properties from municipalities. Now the municipalities get legal aid payed from public funds, something the other party doesn't have the right to. Needless to say, the Czech Republic doesn't have a legal basis in order to allow free legal aid for those who cannot afford to fight for their civil rights. It is therefore an obvious discrimination of individuals and an act of favoritism towards state entities.

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It is time to quit squabbling about who will get the most financial aid, who will get the most pork, who will get the most benefits from governmental redistributions of wealth, or what the treasury or the taxpayers should do next to make our lives "happier."   It is time to engage in serious discussions about whether the US government is doing what it is constitutionally required to do.  To have such a discussion, it is best to start with the language of the Constitution.  I would like to see us begin the discussion with a look at Article IV, Section 4 of the US Constitution:

US Constitution, Article IV, Section 4:  The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence.

Now, with this definition in mind, I present two easily-answered questions when posed within the framework of the US Constitution:

• Test question #1:  Is the Federal Government protecting the States against invasion?  Compare and contrast the viewpoints of the citizens of Oregon and North Dakota to the viewpoints of the citizens of Texas, New Mexico, Arizona, and California, whose states are experiencing an invasion of illegal immigrants.
• Test question #2:  To quell domestic violence in the aftermath of Katrina: the National Guard and federal troops should have been deployed in New Orleans:
• (a) as soon as a federal official thought it prudent, or
• (b) at such time as the New York Times would later assert, after applying biased 20-20 hindsight, was the time when the federal government should have acted, or
• (c) upon application from the Louisiana legislature, or
• (d) upon application from the Governor of Louisiana?

If you missed any of the questions above, I would suggest studying the US Constitution and then following my easy four-step plan: read, appreciate, understand, & apply.

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Somehow we have equated permissive inaction with "making laws which establish religion".  Is the phrase, "Separation of Church and State," anywhere in this, the first article of the Bill of Rights?  Even more interesting, is there any language in this article which says that religious messages (Ten Commandments) or religious displays (manger scenes) or religious activity (praying) is not permissible on public property?

US Constitution, Amendment I: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

The politically correct position regarding religion is obscene for its blatant obfuscation and sophistry. Am I the only one who finds it at least curious, if not infuriating, that when trying to identify and define pornography, the Supreme Court applies the following standard (from Miller v. California):

"Whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest . . ."

But when defining impermissible religious action there is no such requirement for applying contemporary community standards.  Thus, the standard for the impermissible establishment of religion in Knoxville and Birmingham is the same as in San Francisco, Seattle, and Manhattan.

I submit that we now have a government which is anti-religion and, at the direction and guidance of the ACLU, is actively engaged in and making laws "prohibiting the free exercise thereof."  Why is this not in the public discourse and debate?  Where is the leadership from an elected official?  One Alabama judge tried to lead, and paid a heavy personal price when The People refused to defend their rights.

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Are we served best by political rhetoric that positions and promotes "Americans against Americans" or by political rhetoric that positions and promotes "Americans against bloated, incompetent governmental bureaucracies"?  I submit that the Constitution of the United States of America was not written to define how citizens of the USA deal with each other, but how we permit our government to deal with us, The People.
 
We, and our rights, are being trampled on by our personal failures to question our government and our blind acceptance of misleading platitudes in place of knowledge and accuracy.

In spite of what Reverend Al Sharpton, Reverend Jesse Jackson, and the Press would have us believe regarding Michael Vick, Michael Jackson, and other criminal defendants (but not about the Duke lacrosse players), we MUST presume that Mr Vick is innocent, at least until he is proven guilty in a court of law.  WRONG!  We, The People, are free to make whatever presumptions we choose to make, whether they be arrived at upon thoughtful inquiry or stupid acceptance of nonsense.  However, We, The People, in our Constitution have set a different standard to which the government must adhere.  Is the Constitution the source of the often cited phrase of "Presumption of Innocence?"
    
That font of facts, Wikipeadeia, says, "Although the Constitution of the United States does not cite it explicitly, presumption of innocence is widely held to follow from the 5th, 6th and 14th amendments." See also Coffin v. United States:

U.S. Constitution, Amendment V:  No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

U.S. Constitution, Amendment VI:  In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

U.S. Constitution, Amendment XIV, Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Amazing, no "Presumption of Innocence" is imposed upon the citizenry, and no constitutional power or fodder for the Thought Police.   Thus, I am free to presume that Mr. Vick is guilty of all manner of dastardly deeds and crimes, and under the First Amendment I am free to state my opinion publicly to anyone who is so unfortunate as to be within the sound of my voice or the wide coverage of my written words.

So, what is the "Presumption of Innocence?"  It is the framework that establishes that you and I cannot be compelled to "prove" our innocence against unproven allegations from a powerful governmental system which presumes (and therefore prejudges our) guilt.  It is not a club to prevent the citizenry from rejecting individuals, distasteful individual behavior, and ineffective government officials.

One last thought on prosecution — the legal proceeding leading to state sanctioned punishment.  It is greatly different from persecution.  You and I do not have the power to prosecute people.  However, we have the power to persecute people.  What is persecution?   Today's politically correct definition is: "To oppress or harass with ill-treatment, especially because of race, religion, gender, sexual orientation, or beliefs."  Interestingly, Webster's II New Riverside Dictionary (1996) has a more traditional and accurate definition: "To harass in a way that causes suffering, esp. because of principles or religious belief: oppress."

We, The People, must reclaim our right to publicly harass (i.e. To annoy or disturb persistenly) individuals and organizations which demand our silence and acceptance while they spew false, immoral, destructive, and traitorous concepts and philosophies. Silence is no longer golden, it has become self-destructive.

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"YES" (DA) was the Romanian Orange elections slogan in 2004. Now President Basescu’s supporters have to say "NO" (Nu).

For the first time, Romanians voted today in a referendum whether to impeach the president on  alleged anti-constitutional gestures or not. 75% of the voters backed Basescu. Although the turnout was not as great as expected - 48% - the results show a clear option: NO to the impeachment procedure, seen as a reaction of a corrupt and antireformist parliamentary majority to the president's bold moves against corruption and push for openness and reforms.

The new government under the same Premier who used to be Basescu's ally in the DA-Alliance is now his fiercest fiend. Calin Popescu Tariceanu chose to back down on the reforms pushed forward before Romania's accession to the European Union, in January this year. He and the members of  the new minority government, backed by the socialist (post-communist) opposition are championing in doublespeak, a skill trained by Romanian politicians in over 45 years of communism.

 “We will continue and accelerate the fight against corruption,” promised the new justice minister, Tudor Chiuariu, when he took office one month ago. But his first move was to request the dismissal of a top anticorruption prosecutor who was investigating senior members and supporters of the ruling coalition. The reasoning was that these probes were proving fruitless. “A prosecutor should by evaluated by the number of cases he has won. Until now, there have been no verdicts, which mean the cases are not solid enough,” the minister argued. He omitted to mention the fact that prosecutors didn't get the chance yet to present the probes in a trial of high level corruption, due to the delays and procedural loopholes that allow the defendant to postpone the actual trial.

Still, a good sign was the reaction of  several prosecutors and magistrates who openly protested against Chiuariu's measure. A German expert named this "the Macovei effect" - named after Chiuariu's predecessor, Monica Macovei, broadly appreciated by the EU and US for shaking up the judiciary and granting independence to the magistrates. Due to the "Macovei effect", Romania has now a critical magistracy, aware and openly opposing to any brutal interventions like the Chiuariu incident. The same day Chiuariu asked the interim president - an old-guard communist, Nicolae Vacaroiu - to approve the dismissal of the anti-corruption prosecutor, the Parliament passed a law establishing a new control body to verify the assets and conflicts of interests of politicians and civil servants.

That was a key condition for EU membership; failure to get it going would have triggered a "safeguard clause" from Brussels. But the newborn “Integrity Agency” has a major weakness: it is not an independent body, but subordinated to the very same parliament it is supposed to investigate.

Nonetheless Tariceanu  hailed the new body as a great success, proving that Chiuariu's negotiating skills as opposed to his predecessor's uncompromising style. Still, media and foreign observers concentrated their attention on Chiuariu's move regarding the anti-corruption prosecutor. Especially since he was investigating some cases regarding current government members or allies from the Socialist Party.

A strong signal came on Wednesday, when 9 foreign diplomats participated to the hearings of the High Council of Magistracy, where the fate of the anticorruption prosecutor was to be decided. "The European Commission and the EU Member States follow closely the reform of the justice system and the fight against corruption in Romania. That it is why they attended today's meeting of the High Council of Magistracy, which was a public one", stated the EU Representation in Bucharest. Opposition spokesman Cristian Diaconescu said "It is an unprecedented embarrasment. Romania has become a country with limited sovereignty, under a stronger monitoring than Kosovo."

The Council ruled to postpone the decision and requested an evaluation over the activity of the prosecutor. Chiuariu backed down and said he will respect the Council's decision, one way or the other.

Romanians can only hope that with Basescu's return to the presidential palace, the push for a reform of the political class will grow stronger. The first signs seem to appear: the Socialist opposition leader Mircea Geoana spoke about the need for MPs being elected directly and for a much stronger parliamentary discipline and transparency. Even the Premier admitted that "the public agenda is totally different than the politicians seem to be aware of" and that "this month with a suspended president was a waste of time and money". If this is "the beginning of a beautiful friendship" remains to be seen. Campaigning will continue in the next two years, as Romania will elect its 35 members of the European Parliament in autumn this year, followed by local and regional elections next spring and by parliamentary elections in the fall of 2008. The next presidential elections are due in autumn 2009. Foreign observers expected early parliamentary elections after today's referendum. "It will be a great political loss for the ones who voted to impeach the president. In Germany, we would expect early elections, since the people vetoed the Parliament's decision", said Holger Dix, the representative in Bucharest of the German conservative foundation "Konrad Adenauer." But Romania is not Germany…

[I contributed to the today's cover story in The Economist]

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