COMMISSION STAFF WORKING DOCUMENT

ROMANIA: Technical Report

Accompanying the document

REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL

On Progress in Romania under the Co-operation and Verification Mechanism

1........... Benchmark 1: Ensure a more transparent and efficient judicial process notably by enhancing the capacity and accountability of the Superior Council of Magistracy. Report and monitor the impact of the new civil and penal procedures codes........................................................................................................... 4

· Implement any necessary measures, including those provided for in the relevant Action Plan of the Superior Council of the Magistracy adopted in June 2006, that ensure a consistent interpretation and application of the law at all levels of court throughout the country following adequate consultation with practising judges, prosecutors and lawyers; monitor the impact of recently-adopted legislative and administrative measures

· Design and implement a rational and realistic staffing model for the justice system on the basis of the ongoing needs assessment

· Develop and implement a plan to restructure the Public Ministry that addresses the existing managerial shortcomings and human resources issues

· Monitor the impact that the newly-adopted amendments to the Civil and Criminal Procedure Codes have on the justice system so that any necessary corrective measures can be incorporated in the planned new Codes

· Report and monitor on the progress made, as regards adopting the new Codes including adequate consultations and the impact it will have on the justice system

· Enhance the capacity of the Superior Council of Magistracy to perform its core responsibilities as well as its accountability. In particular, address the potential conflicts of interest and unethical actions by individual Council members. Recruit judicial inspectors, according to the newly-adopted objective criteria, who should also have a greater regional representation

2........... Benchmark 2: Establish, as foreseen, an integrity agency with responsibilities for verifying assets, incompatibilities and potential conflicts of interest, and for issuing mandatory decisions on the basis of which dissuasive sanctions can be taken................................................................................................................... 8

· Adopt legislation establishing an effective and independent integrity agency with responsibilities for verifying assets, potential incompatibilities and conflicts of interest, as well as issuing mandatory decisions on the basis of which dissuasive sanctions can be taken

· Establish such a National Integrity Agency; ensure it has the necessary human and financial resources to fulfil its mandate

3........... Benchmark 3: Building on progress already made, continue to conduct professional, non- partisan investigations into allegations of high- level corruption......................................................................... 12

· Continue to provide a track record of professional and non-partisan investigations into high-level corruption cases

· Ensure the legal and institutional stability of the anti-corruption framework, in particular by maintaining the current nomination and revocation procedure for the General Prosecutor of Romania, the Chief Prosecutor of the National Anti-Corruption Directorate and other leading positions in the general prosecutor's office

4........... Benchmark 4: Take further measures to prevent and fight against corruption, in particular within the local government................................................................................................................... 17

· Assess the results of the recently-concluded awareness-raising campaigns and, if necessary, propose follow-up activities that focus on the sectors with a high risk of corruption

· Report on the use of measures to reduce the opportunities for corruption and to make local government more transparent, as well as on the sanctions taken against public officials, in particular those in local government

Note:

Under each of the four benchmarks, several issues of particular concern were mutually agreed when the Cooperation and Verification Mechanism was created in December 2006. These issues are listed above under each benchmark and have been addressed as far as progress has been reported. You may consult previous reports at: http://ec.europa.eu/dgs/secretariat_general/cvm/index_en.htm

1. Introduction

This technical report sets out the information and the data which the Commission has used as the basis for its analysis. This information has been collected from a variety of sources. Over the past five years, the Commission has devoted particular attention to collecting information and deepening its knowledge of Romania. It has used a combination of on-the-spot dialogue with key interlocutors, a permanent presence in the Commission's representation, and the knowledge and experience of experts from other Member States. It has also had the benefit of working closely with successive Romanian governments, which have provided detailed and focused responses to a series of questionnaires, as well as with a variety of key judicial and governmental bodies. This technical report makes several references to past reports of the Commission under the Co-operation and Verification Mechanism (CVM), which provide a collective record of progress since Romania's accession to the EU.

This technical report summarises developments over the full five year period. Nevertheless, it should be noted that it has been drafted at a time of rapid change in Romania, with implications for many of the issues raised.

A number of decisions by Government and Parliament in the week of 2 July raised serious concerns regarding the respect for judicial independence and the rule of law in Romania. These decisions appeared to deliberately remove effective Constitutional controls of political decisions. They included deliberate actions to limit the powers of the Constitutional Court,[1] the replacement of several senior officials[2] and changes to referendum rules.[3] Some of these decisions werecontrary to constitutional requirements.[4] These events were accompanied by pressure against individual magistrates.[5]

2. Benchmark 1: Ensure a more transparent and efficient judicial process notably by enhancing the capacity and accountability of the Superior Council of Magistracy. Report and monitor the impact of the new civil and penal procedures codes

Reform of the judicial system is one of the two overarching themes monitored under the Co-operation and Verification Mechanism in Romania. At the point of accession it was concluded that shortcomings remained in the functioning of the Romanian judicial system which required further reforms. These reforms focused on the need to strengthen the efficiency and consistency of the judicial process, as well as the transparency and accountability of the judiciary.

Statistics of the ECHR show that Romania counts the second highest number of ECHR judgments among any EU Member State which are pending execution. A large number of these judgments concern difficulties with civil enforcement, the excessive length of civil proceedings and the absence of an effective remedy and ineffective criminal investigations.[6]

In more detailed terms this involved adopting new Codes, implementing measures to unify jurisprudence, strengthening human resources management within the judiciary, restructuring the Public Ministry, and enhancing the capacity and accountability of the Superior Council of the Magistracy and of the transparency, accountability and integrity of the judiciary as a whole.

Reform of the legal framework and the new Codes

A central component of the judicial reform initiatives of the Romanian authorities has been the modernisation of legislation. Since 2007 Romania has adopted new substantive Civil and Criminal Codes and their accompanying procedure Codes. This has been a significant legislative undertaking, requiring important efforts by the executive, legislative and the judiciary. Taken together, the new codes seek to modernise the substantive law and to improve the efficiency and consistency of the judicial process.

Modernisation of the substantive law has included efforts to increase the predictability of the judicial system, by regulating more clearly the fields of civil and criminal law.[7] The new substantive codes have also introduced possibilities (such as the possibility to obtain a divorce before a notary where the divorce is by mutual consent) which may help reduce the workload of the courts.

The new Procedure Codes contain a variety of new approaches which seek to strengthen the consistency and efficiency of the judicial process. Significant reforms are made to jurisdictional arrangements and trial procedures by both codes, including introducing a new preliminary ruling procedure to assist with the unification of jurisprudence. The new Criminal Procedure Code also introduces the "opportunity principle" for the prosecution, a preliminary chamber judge – who should check the legality of the indictment, evidence and procedural acts, preventing such issues delaying the substantive trial – and an admission of guilt procedure before the court.[8]

However, despite the adoption of the new substantive codes in 2009 and the new procedural codes in 2010, so far only the new Civil Code has entered into force. This Code came into force in October 2011. The new Civil Procedure Code is scheduled to enter into force on 1 September this year.[9] Work to implement the new Criminal Code and Criminal Procedure Code is ongoing, with entry into force foreseen for 2013.

Implementation has proved and remains a challenging task for the Romanian institutions. Significant further efforts are required to ensure a smooth implementation of the remaining codes. This includes further legislative efforts, with implementing laws still needing to be adopted for the new Criminal and Criminal Procedure Codes – an important step in delivering legal certainty and fixing a clear implementation date – but also other essential measures including training, further recruitments, internal restructurings and other managerial and organisational measures, as well as public information campaigns.[10]

In July 2011, the Commission recommended the Romanian institutions to accompany the entry into force of the new Civil Code and to adopt a comprehensive implementation plan to guide their efforts to implement the remaining three new codes.[11] An implementation plan was drafted and was finalised by the Ministry of Justice in early 2012 following consultations with other institutions. However, although covering the principal issues, its endorsement by – and the active engagement of – other institution appears unclear. In addition, further details still have to be worked out, key decisions still have to be taken by the executive and the judiciary, and the plan does not seem to have developed into the kind of comprehensive, living road-map envisaged.[12] Efforts therefore remain disjointed, which presents a continuing risk for the efficiency and effectiveness of the implementation.[13]

Implementation has been further complicated by the decision of the Romanian authorities to draft an impact study only after the codes themselves had been adopted. A study has now been drafted and is being used as a tool to assist with implementation, identifying resourcing and other implementation needs. However, this delay prolonged the process of implementation and opened the door to calls to reopen discussions on central elements of the new Codes: the argument being that since the true practical and resource implications were not factored into the policy making process, the implementing law should include changes which effectively amend the Code itself.

In these circumstances further work is therefore required to complete the reform initiated by the drafting of new codes. It also remains too early to draw conclusions on the impacts that result from the new Codes, to see if they have achieved their goals to modernise the legal framework and to strengthen the efficiency and consistency of the judicial process.[14] The task of the Romanian authorities is therefore to consolidate and intensify efforts to implement the remaining new codes, and to concentrate then on identifying the tangible impacts that result.

In the interim, with a view to expediting some of the reforms, in 2010 a Small Reform Law was adopted, amending the existing procedure codes with a view to accelerating judicial proceedings and increasing their quality. Key reforms strengthened the efficiency of the prosecution by allowing the prosecution to take over motivations of the police in simple cases where the prosecutor decides not to open an investigation, and by introducing greater possibilities for the prosecution not to pursue cases where existing evidence does not warrant further investigation. Other changes sought to expedite trials – streamlining summonsing procedures and introducing a guilty plea procedure – as well as to strengthen the efficiency of the existing mechanisms for unifying jurisprudence. Reaction from practitioners clearly points to the conclusion that this law has had a positive impact, anticipating in some cases provisions in the new Codes.

Unification of jurisprudence

At the point of Romania’s accession to the European Union one persistent vulnerability identified was the inconsistent interpretation and application of the law.

Since accession the major legislative reforms adopted have all sought to strengthen the mechanisms for unifying jurisprudence. Addressing in part recommendations issued by the Commission in 2009 and 2010, the Small Reform Law amended the competence of the High Court, reducing its scope of jurisdiction as a first instance and first appeal court, in order to help the Court to focus on cassation and unification of jurisprudence. It also streamlined the appeal in the interest of the law, an existing extraordinary mechanism for resolving, for future cases, legal questions arising from inconsistent final decisions.[15] The new Procedure Codes consolidate these reforms, overhauling jurisdictional arrangements, concentrating jurisdiction for second appeals at the High Court and refocusing second appeals on their primary cassation purpose. To complement the appeal in the interest of the law, the new procedure codes also introduce a new, more proactive mechanism for unifying jurisprudence. This preliminary ruling procedure allows for a court ruling in final instance to address questions to the High Court for an interpretative ruling that is binding both for the court in question and for future cases.

The reforms brought by the Small Reform Law have been well received by practitioners, and have led to real improvements in terms of the efficiency of solving appeals in the interest of the law.[16] However, the total number of appeals solved through this mechanism remains small, questioning how far it has contributed to solving the problem of inconsistent jurisprudence.[17] More far-reaching reforms are introduced by the new Procedure Codes. These Codes offer the potential for the High Court to consolidate and intensify its important role in unifying jurisprudence, in fulfilment of their constitutionally enshrined responsibilities.[18]

It remains to be seen how the revised jurisdictional arrangements and new preliminary ruling procedure will function in practice.[19] The High Court will need to be prepared for their revised tasks. Suitable filters will need to be in place to establish the clear admissibility of appeals or requests for preliminary rulings. At present it is unclear whether these filters are in place.[20]

The High Court will be crucial to the success of legislative reforms in establishing efficient arrangements and mechanisms for unifying jurisprudence. The High Court has begun to take steps to prepare for their new tasks, undertaking simulations of how they will handle the new preliminary rulings and obtaining financing to hire a small number of additional assistant magistrates, the majority of which will be dedicated to assisting the panels responsible for ruling on appeals in the law and preliminary ruling requests.[21] However, questions remain as to whether the competence of the High Court has been suitably reshaped. For Constitutional reasons the High Court has to deal with a significant workload of first instance trials in criminal cases, whilst it also has to rule on a significant number of other procedural decisions, such as on transfer of files between Courts. In some of these cases, the High Court has shown it can offer the function of providing best practice, but consideration could be given to divesting the High Court of some of these competencies to allow the High Court to focus further on their cassation role. Further organisation changes within the High Court could also strengthen the efficiency of court proceedings.

Legislative reforms alone will not solve inconsistent jurisprudence. It also requires a recognition of the importance of this issue amongst the judiciary. Since 2007 the Romanian authorities have also taken a number of practical steps to promote a consistent jurisprudence amongst the magistracy, including meetings, training seminars and improvements in the publication of motivated court judgments. However, further work is required. There appears a persistent reluctance in some quarters to follow the jurisprudence of superior courts. This hampers – and could continue to hamper – the unifying effect of cassation appeals.[22] This necessitates a cultural change and a greater impact of these issues in the evaluation and promotions system.

Meetings between the High Court and the Courts of Appeal to discuss jurisprudence issues ceased due to a lack of financing. A video-conference system which was procured to allow for these discussions to take place remotely is also rarely used, due to budget constraints. Suitable financing needs to be ensured. Access to jurisprudence also remains a major impediment. The online publication of all court motivations, a Commission recommendation, has not yet been achieved.[23] This includes the High Court, which does not yet publish all its motivated judgments online, reportedly reflecting both resourcing constraints and a recognition that even within the High Court itself, there are examples of inconsistent jurisprudence. For other courts the situation is worse. Jurindex, a publicly accessible online database, is currently not being updated and contains only a limited range of decisions from 2008-10, whilst the public section of the courts portal managed by the Ministry of Justice contains even fewer decisions, with only a fraction of the total number of decisions issued each year. The internal database is also insufficiently comprehensive, posing particular problems for judges ruling in final instance at Courts of Appeal, who can only access the decisions from their Court of Appeal circumscription. These issues hinder both the unification of jurisprudence and also the transparency and accountability of the act of justice.

Inconsistency and a lack of predictability in the jurisprudence of the courts has also been identified as a major concern for the business community and for the wider society. Reports of inconsistent decisions continue to arise and the new codes may severely test the ability of the judicial system to ensure consistent jurisprudence, potentially exacerbating in the short run the challenge of inconsistent jurisprudence. This necessitates intensified efforts form the judiciary. Although inconsistent jurisprudence is recognised as a major vulnerability by the Romanian authorities, there has been little attempt to map this vulnerability. This makes it also more difficult to measure the impact of the measures taken.

Capacity, human resourcing and structural reform of the judicial system

At the point of accession, the second major vulnerability of the Romanian justice system was efficiency. This was directly influenced by its capacity. Since 2007 significant sums have been committed to judicial reform from external, as well as internal, sources. As of March 2012 projects totalling 57 M EUR have been finalised, projects totalling a further 9 M EUR were ongoing and projects totalling a further 13 M EUR were under evaluation. A further 81 M EUR has been contracted of a World Bank loan to support the reform for the judiciary. Payments from the loan have been made totalling 36 M EUR. As a result of the loan two new courts have been constructed, construction work has been completed at a further eight courts and is ongoing at another four courts. The loan has or is continuing to finance technical assistance and to finance the procurement of an integrated IT system for resource management within the judiciary.

Since 2007 the number of positions for judges and prosecutors has been expanded, with an additional 54 positions for judges and 66 positions for prosecutors allocated. The number of magistrates seconded out of the magistracy has also been significantly reduced, and a special reserve fund of 100 financed magistrates’ positions created to enable additional magistrates to be allocated to courts or prosecutors' offices with temporarily vacant – and therefore blocked – positions and a disproportionate workload.[24]

However, capacity and resourcing issues continue to raise significant challenges for the judicial system. The Commission’s reports under the CVM have followed this issued closely. Although between 2007 and 2011, significant numbers of new magistrates have been appointed each year, the judicial system has struggled to recruit sufficient numbers of new magistrates to cope with exits from the system and there has been negligible progress in reducing the total number of vacant positions within the judiciary.[25] As a result, between 2007 and 2011 the total number of vacant positions for prosecutors has fallen by only 103 positions and of vacant positions of judges by only 8 positions.[26]

Significant staffing imbalances remain, with notable variations in workload reported between courts of the same level of jurisdiction and between courts of different levels of jurisdiction. CVM reports have consistently noted the need for a redistribution of vacant positions.[27] The redistributions which have taken place have not been extensive enough to tackle discrepancies between courts, and a thorough re-dimensioning of the personnel scheme has not been attempted. The introduction of the new codes is an opportunity to undertake a fundamental reorganisation, but this does not now seem to be taking place, so that existing inefficiencies within the system will remain. A fundamental weakness of the Romanian judiciary has been the continued absence of effective mechanisms to measure workload and performance within the judiciary, and therefore make informed management judgments about how many magistrates are required and where. However, an important project has now been launched which seeks to address this deficiency and can be used, once complete, as the basis for a fundamental reorganisation.[28]

Until recently, questions have also continued to be raised as to the professionalism and objectivity of the resourcing decisions taken by the Superior Council of the Magistracy, with allegations of subjective decision making and a tendency that the career prospects of magistrates prevail over the sound human resources management of the system.[29]

Nearly half of all new magistrates recruited during the five years from 2007 have been recruited using provisions in the law allowing for extraordinary direct entrants into the magistracy, as opposed to through the usual two-year training at the National Institute of the Magistracy.[30] The authorities have justified this on the grounds of capacity shortfalls within the judiciary – reflecting an inability of the leadership of the judiciary to estimate human resources needs on the medium and long term – but also capacity constraints at the National Institute of the Magistracy. The Commission recommended increasing the capacity of the Institute to train new magistrates in CVM reports in 2010 and 2011, but this has not yet been significantly increased. The total number of initial trainees the Institute can accommodate is still capped at approximately 200 per year and the Institute is still restricted by the premises they occupy. The volume of continuous training offered has also fallen significantly since 2007.[31] Nevertheless, first steps to address these persisting weaknesses may now be beginning to be taken, with increases in financing for initial and continuous training and provision to hire 15 additional trainers.[32] Further strengthening of the capacity of the Institute would be needed to ensure its resourcing adequately reflects the recruitment and training needs of the judiciary.

The large-scale usage of the direct-entry route has also raised questions about the thoroughness of selection procedures applied to these candidates and the preparedness of new recruits recruited in this way. The Romanian authorities have gradually taken steps to address these concerns, but not before significant use has been made of these recruitment channels. In 2007-2008, 164 magistrates were appointed without a thorough contest. The law at the time permitted legal professionals with ten years' experience to enter directly into magistracy, subject to a simple interview before the Superior Council of the Magistracy. Following concerns raised by the Commission this possibility was eliminated. In its place significant use has been made of an alternative, existing direct entry route into the magistracy by exam, for legal professionals with five years' experience. Since 2007, 708 new magistrates have been recruited through this route. However, as these recruits have until now sat a less comprehensive examination than applicants to the Institute (who subsequently would also need to pass a series of further exams), and benefitted from only a short period of post-recruitment training, questions remained as to the equivalent level of preparedness for their tasks. Following concerns raised by the Commission, in April 2012 the Superior Council of the Magistracy adopted amendments to internal regulations to apply equivalent exams for entry to the Institute and direct entry to the magistracy and increasing training for direct entrants from one month to two months. However, it remains to be seen if this reform goes far enough. Proposals to increase initial training to six months has been considered but not yet adopted, and would constitute a further step in bringing the standard of direct entry recruits closer to those who pass through the Institute.

Work to implement other structural reforms to the judicial system has also been slow. Little progress has been achieved in rationalising the territorial distribution of courts and prosecutors’ offices. In 2005 external experts recommended the closure and restructuring of a significant number of courts.[33] In 2010 the Government brought forward draft legislation proposing the closure of 15 currently functioning courts and their associated prosecution offices.[34] However, in the Parliament the proposals were significantly reduced and only three working courts and their associated prosecution offices were closed.[35] These closures freed up just seven positions of judges and nine positions of prosecutors for reallocation. Further court rationalisation has been discussed, but no legislation has yet been proposed.

There has also been slow progress in introducing other long-proposed reforms. Pilot programmes have been launched in key areas including the transfer of certain administrative tasks from judges to court clerks (piloted 2006-10) and introducing court managers to remove some of the burden of administrative tasks from court leaderships (piloted 2009). However, these have not yet been rolled out nationwide, and an agreed assessment of the optimum division of responsibilities, procedures for appointing such officials and their lines of responsibility has not been made. Draft legislation was proposed to Parliament in autumn 2011 and is currently pending before the Parliament.

The commissioning of an overarching review of the functioning of the judicial system is an opportunity to drive more comprehensive change. The review, financed with EU funds and undertaken by the World Bank, was contracted in February 2012 and should be complete in 9–12 months. The review is assessing the resourcing, organisation, functioning and performance of the judicial system. It should provide short, medium and long term recommendations to guide the direction of judicial reform, as well as a vehicle for reinvigorating structural and capacity reforms.

Superior Council of the Magistracy and the Judicial Inspection

Integrity and accountability issues were the third major concern affecting the Romanian judicial system identified at the point of accession. These concerns were closely related to the ability of the Superior Council of the Magistracy (SCM) and of the Judicial Inspection to ensure a transparent, accountable and effective judicial system, and to uphold the highest standards of integrity within the judiciary.

In line with recommendations set out in CVM reports,[36] since 2007 the SCM has taken a number of measures to improve its institutional transparency. These have included efforts to strengthen communication, the progressive expansion of the institution’s website, and the online publication of its decisions, including disciplinary decisions (since 2010). Since early 2011 the Council’s sessions have also been partially broadcast live online. However, full transparency is not yet achieved.[37]

Efforts have also been made to revise internal regulations with a view to strengthening the objectivity of various management decisions within the competence of the Council. In certain areas these efforts have been complemented by important legislative reforms initiated by the government. In particular, in 2011 the Government proposed legislative amendments which brought substantial improvements to the selection procedure for High Court judges.[38] Attempts to use internal regulations to ensure a thorough, objective and transparent procedure had failed, and the legislation reflected a determined Government effort to progress on the issue.[39] The legislation was adopted by the Government assuming responsibility before the Parliament in December 2011. The first selection procedure under this new law is currently underway.

Public perceptions of the integrity of the judiciary as a whole are inevitably shaped by perceptions of the SCM. Over the last five years, the SCM has had an uphill task to establish public confidence, due to a number of cases which have undermined the legitimacy and credibility of the Council by seeming to show a Council which fails to recognise that protecting the reputation of the judiciary is part of its core functions.[40] The recent decisions taken by the SCM to more proactively defend the independence of the judiciary and the rule of law, as well as the SCM's handling of a number of recent cases, are steps which show the SCM more ready to exercise its Constitutional role and address the issue of public confidence.[41]

The SCM needs to authorise the search and arrest of magistrates. All 24 requests for search filed since 2007 were admitted. Of the 17 requests for custody and 22 for preventive arrest, the SCM dismissed such requests in only one case.[42]

The particular significance of integrity has been recognised by the SCM with the adoption in March this year of a strategy for integrity within the judiciary. This strategy seeks to increase the transparency of the judiciary, improve access to the judicial system, enhance ethical rules and integrity within the judiciary and improve the system of disciplinary liability. This will need to be backed up with proactive leadership and specific mechanisms to ensure that all levels of the judicial system recognise their obligations and bring results.

Various measures have also been taken to strengthen the Judicial Inspection and the disciplinary system for magistrates. These have included progressive steps to strengthen the recruitment procedure for inspectors, including to ensure the regional representativeness of recruits, the status of inspectors, and the internal working practices within the Inspection.[43] Since 2010 the performance of the Inspection and its inspectors has also been subject to periodic evaluations. The Inspection has also launched its own website and since 2011 has produced its own separate annual activity report.[44]

CVM recommendations had pointed to the need to consider a more thorough reform of the Judicial Inspection and disciplinary system.[45] More comprehensive and far reaching changes to the Judicial Inspection were adopted by the Parliament in December 2011. These seek to strengthen the disciplinary system through enhancing the autonomy of the Judicial Inspection, expanding the range of disciplinary offences and sanctions, and extending the power to initiate disciplinary action to the President of the High Court, the General Prosecutor and the Minister of Justice.[46] The new law also seeks to close significant loopholes in existing legislation that had undermined the effectiveness of the disciplinary system by allowing magistrates to escape disciplinary liability through retirement whilst under disciplinary investigation.[47] The new law also introduces the possibility to suspend magistrates whilst under disciplinary investigation.[48]

The law came fully into force in May 2012. Its success will depend on whether it strengthens the efficiency of the disciplinary system and the Judicial Inspection. Applying the law in a way which shows its benefits as a tool for enhancing the effectiveness and integrity of the judiciary is the best way to reassure those who fear that it could generate potential abuses and undermine judicial independence.

The law is of particular importance, given slow progress in addressing deficiencies or enhancing performance within the Judicial Inspection.[49] Despite periodic recruitment procedures, there remain significant shortfalls in the personnel within the Inspection, whilst reports of inconsistent practices continue.[50] The track record of the Inspection itself also continues to raise questions. Statistical data supplied for the years 2007-11 indicate that over the five years, there has not been a significant change in the number or types of disciplinary sanctions applied to magistrates.[51] This data, combined with the experience of certain emblematic cases, have continued to raise questions as to whether the Inspection is contributing to the reform of the judiciary with the speed, pro-activeness and rigour that might be expected. The rigour of the Inspection's action and the dissuasiveness of the sanctions applied has a direct bearing on public confidence concerning integrity within the judiciary.

Concerns also remain as to the efficiency of the Judicial Inspection’s work in their non-disciplinary control activity. Although since 2006, the Inspection has undertaken management controls of all courts and prosecutors’ offices, and undertaken a series of topic-related controls on a useful range of issues, the consistency, impact and effectiveness of these controls remains unclear, particularly in terms of follow-up. The Commission’s report of July 2011 recommended that the Judicial Inspection demonstrate a track record in the analysis and improvement of judicial practice, and a number of useful controls on significant issues have been undertaken.[52] These controls are more focused than in the past, and some have generated the formulation of important recommendations. If these recommendations are followed up and this practice becomes generalised, it will represent an important step in the use of the Inspection to promote reform.

Public Ministry

At the point of accession, specific deficiencies were also identified in the prosecution.[53] Over the five years since accession, the then newly appointed General Prosecutor has in the course of her two mandates taken a series of measures designed to strengthen the management and performance of the prosecution. Measures taken have included greater prioritisation, the adoption of local strategies for combating certain priority crimes, the introduction of new more focused evaluation criteria for prosecution offices, the creation of networks of dedicated and specialised prosecutors, targeted trainings, and the drafting and dissemination of best practices guides.

Addressing specific weaknesses identified in the pre-accession monitoring reports, the Public Ministry has also developed its internal computer systems, establishing a case management system, a secure communication system, direct access to state databases, and a virtual library containing an archive of decisions, jurisprudence and guidelines. The case management system ensures file tracking and provides management data, improving statistical data collection to strengthen the monitoring of the performance of the prosecution as a whole. The General Prosecutor has also actively proposed and supported closely the legislative reform process, ensuring the introduction of provisions in the Small Reform Law and the new Codes which are designed to strengthen the efficiency of the prosecution. Further reforms to strengthen the control of the Public Ministry over the judicial police and to hire technical and scientific experts to assist the regular prosecution are being pursued in the context of implementation of the new Codes.

As a result of this proactive approach, Romania can report a significant increase in the prosecutions of smuggling, tax evasion, corruption and organised crime offences.[54] Although these increases may in particular be the result of the work of the specialised prosecution offices, rather than necessarily reflecting changes in the prosecution as a whole, over the last five years there has also been a steady increase in the total number of solved cases and of indictments, indicating more generalised improvements.[55] Tangible improvements in the efficiency of the prosecution are reported to have resulted from the Small Reform Law, whilst further efficiency gains are awaited once the new Criminal Procedure Code is in force.

However, despite these improvements there remain significant challenges to be addressed. One of the principal concerns flagged at the point of accession was of the uneven distribution of workload. The General Prosecutor has made a series of proposals in this field over the last five years, some of which have been adopted by the Superior Council of the Magistracy and led to some reorganisation of personnel schemes and redistribution of positions.[56] Nevertheless acute imbalances between resourcing and workload remain.[57] More substantial efforts to promote the further redistribution of positions, the closure of small prosecutors’ offices or the redefinition of territorial districts have not been accepted by the Council.

Other challenges include the persistence of large numbers of vacancies within the prosecution and insufficient auxiliary personnel, whilst the sizeable number of new recruits who have entered the prosecution in recent years creates challenges in terms of experience and institutional knowledge.[58] These challenges are exacerbated by the steadily rising number of criminal files, with the number of incoming cases outstripping the rate of solved files, despite notable year-on-year increases in the number of solved files.[59] The impacts of the new Codes will need to be closely monitored in this regard, and further legislative interventions contemplated if the Codes themselves do not prove sufficient in ensuring an efficient framework for managing the inflow of cases.

The recovery of the proceeds of crime and the pursuit of money laundering have also been areas expressly identified under the CVM as requiring improvements.[60] Over the five years since accession, the Public Ministry has taken a number of steps to address weaknesses in financial investigations, the pursuit of money laundering and the low levels of the confiscation of the proceeds of crime. In 2010 external experts were commissioned under an EU-financed project to undertake an analysis of the performance of the Romanian system. Further measures taken include training for specialised prosecutors and police officers, as well as introducing specialised training on the curriculum for trainees at the National Institute of the Magistracy. There is now a common order of the General Prosecutor and the Minister of Interior which lays down a standardised procedure to be applied in all criminal cases, to ensure the measures to recover the proceeds of crime are considered in all cases and from the earliest moment. These measures have also been assisted by legislative amendments and the establishment of an Asset Recovery Office within the Ministry of Justice.

Reacting to the virtual absence of prosecutions of money laundering as an autonomous offence, in autumn 2011 the General Prosecutor issued a legal opinion confirming that existing legislation allowed for money laundering to be prosecuted without a prior conviction or simultaneous prosecution of a predicate offence, and without the precise determination of the predicate offence that generated the laundered proceeds. However, further work is required in these fields too. The impact of these measures and the extent to which they have contributed to meeting the Commission’s recommendations in these fields are analysed under Benchmark 4, where the steps of other institutions to improve the performance of the Romanian authorities in these fields in also detailed and assessed.

3. Benchmark 2: Establish, as foreseen, an integrity agency with responsibilities for verifying assets, incompatibilities and potential conflicts of interest, and for issuing mandatory decisions on the basis of which dissuasive sanctions can be taken.

The combating of corruption is the second overarching theme monitored under the Co-operation and Verification Mechanism in Romania. One part of the requirements was to establish an integrity agency to verify assets, incompatibilities and potential conflicts of interest of holders of public office. At the point Romania joined the EU, this Agency – the National Integrity Agency (ANI) – did not exist. Today the Agency has been operational for over four years, albeit with its activity severely interrupted in 2010. The key objectives that Romania needed to address with a view to fulfilment of this benchmark were to establish an effective, robust and secure legal and institutional framework for the Agency, and to deliver a convincing track record of investigations, findings / referrals and sanctions.

Legal Framework

The founding law of ANI was adopted by the Parliament in the year after accession, and strengthened by a Government Emergency Ordinance of the same year. However, central elements of this legal framework were declared unconstitutional by the Constitutional Court in spring 2010.[61] For a number of months, work at ANI ceased, in the absence of a legal framework. Following extremely difficult discussions in the Parliament that summer, when draft laws were approved by the Parliament reducing ANI’s powers over and beyond amendments required to comply with the Constitutional Court decision – an episode detailed extensively in the Commission’s report of July 2010 – new legislation was finally adopted in August 2010.[62] This law now underpins ANI’s activities.

The 2010 law was discussed at length in the CVM report of July 2011.[63] Whilst the new law addressed the key points of concern identified in the July 2010 report, concerns remained as to its effectiveness in a number of specific areas, in particular concerning the prescription periods (which were introduced by the 2010 law) and the functioning of the Wealth Investigation Commissions.[64]

The constitutionality of the new law has also been questioned. However, in June 2012 the Constitutional Court rejected a series of Constitutional exceptions, upholding the Constitutionality of central elements of the 2010 law. Nevertheless, a number of other Constitutional exceptions remain pending, whilst there have also been periodic attempts in the Parliament to change ANI’s legal framework, including amendments proposed late last year which would have undermined the efficiency and impact of ANI’s activities.[65]

Institutional Capacity

Since ANI first became operational in 2008, significant efforts have been made to develop and consolidate the institutional capacity of the Agency. Staff have been recruited, internal procedures adopted, codes of conduct drafted, trainings undertaken and protocols signed with other public institutions.[66]

In particular, important investments were made to develop computer systems within the Agency, providing for an effective case management system, assisting with the standardisation of procedures and enhancing the efficiency and effectiveness of the work of ANI’s inspectors. Such investments and efficiency savings have been especially important given the reduction in the total number of personnel – in particular integrity inspectors – in recent years, reflecting austerity measures faced by the public sector as a whole.[67] ANI has also established a public portal where all asset and interest declarations submitted by holders of public office are published, an important measure for transparency.[68] In total the Agency and their contractors – the scanning and uploading of these declarations is currently outsourced – process over half a million declarations annually.[69] Steps have also be taken to provide guidance on incompatibilities and conflicts of interest, on the completion of asset and interest declarations, and to train contact points in public institutions, with a view to raising awareness and improving the efficiency and accuracy of the declaration submission procedure.[70]

Work continues to further consolidate the capacity of the Agency, with important further upgrades under way to ANI’s information systems, part of a 4 million EUR project financed with European funds. This will simplify the process of filing, archiving and analysing asset and interest declarations, providing for the introduction of electronic completion and submission of declarations. It will also introduce an improved public portal and significant enhancements to the information system used by inspectors, including secure access to other state databases and automated analysis of the data compared to that contained in previous declarations, as well as with information held by other public institutions and with open sources. This should significantly increase the proactive capabilities of the Agency. To help finance the further investments foreseen, ANI has received a significant budget increase this year.[71]

Altogether much progress has therefore been made in establishing suitable infrastructure and capacity within the Agency to perform their tasks and important further steps are already foreseen. These measures should continue. However, the adequacy of the total number of personnel will need to be kept under review, given indications of increased workload, as well the level of remuneration of inspectors and staff retention. [72]

The National Integrity Council

To monitor the performance of the Agency and to guarantee its independence, a National Integrity Council was created, comprising of representatives of key institutions and sectors covered by the Agency’s activity. The Council has important attributions including proposing the leadership of the Agency, analysing its performance and making recommendations to improve its performance. To assist them in their tasks, they receive each year an independent external audit report.

However, despite playing an important role during the initial phase of the creation of the Agency, the early years of the Council’s existence were marred by controversy and conflict with the Agency.[73] This led the Commission to conclude in 2010 that the Council had not effectively exercised its role and to propose legal amendments.[74]

Since 2010 the legal provisions governing the composition and the functioning of the Council have not significantly changed, nor by July 2011 had the appointment of a new Council in late 2010 addressed significant questions as to the effectiveness of the Council in fulfilling its core responsibilities.[75] Nevertheless, in the last twelve months the Council has responded constructively to the Commission’s concerns and has begun to demonstrate a more proactive and effective approach. In October 2011 a new procedure was adopted governing the Council’s role in guaranteeing the Agency’s operational independence and importantly the Council has begun to translate these intentions into reality. Interventions have included publicly advocating for sufficient resourcing for the Agency, opposing amendments to the Agency’s legislation and defending the Agency before Parliament. The Council also successfully organised the contest for appointing the new leadership of ANI. The Council has therefore shown that it can act as a key instrument to defend the independence of the Agency, defending ANI's personnel against outside pressure, and could develop still further its role in promoting integrity more generally.

Track Record, Results and Impacts

The crucial determinant of success under this benchmark is the track record of investigations, referrals, findings and dissuasive sanctions applied. This track record can demonstrate whether the system can deliver efficiency and ultimately impact.

Since 2008 ANI has undertaken a significant number of verifications, issuing a sizeable number of referrals or findings. In total as of March 2012, the Agency had commenced over 7,000 verifications against a full range of office holders, including high-level office holders. Over 70% of these verifications have been commenced ex officio by the Agency, indicating a positive, proactive approach by the Agency. The rest of the cases result from complaints from the public or notifications from other public institutions. Although notifications have been received from a broad range of public institutions, surprisingly few notifications have been received from the judicial and law enforcement authorities, public procurement control bodies, and relatively few from local public administration. This raises questions as to whether other institutions are yet fully exploiting the potential of the Agency, with further efforts apparently required on the part of such institutional partners to ensure that appropriate notifications are made to ANI and that the protocols signed with ANI deliver operational value.[76] The Commission’s recommendation of July 2011, to improve the co-operation between ANI and other administrative and judicial authorities, particularly in the area of public procurement, remains valid.[77]

The CVM report of July 2011 also recommended ANI further strengthen its proactive approach.[78] Since summer 2011, ANI has launched risk assessments to identify high risk zones and the first targeted screening of identified high risk sectors. The first screening exercise has been undertaken, focused on local public administration. A significant number of potential cases have been identified which are now being followed up on a case-by-case basis and have already delivered a significant number of findings of integrity violations and referrals of possible criminal offences.[79] A second screening exercise has been launched, focused on authorities managing EU funds. This proactive, systematic approach by the Agency responds directly to the CVM recommendation.

As a result of the total number of verifications launched, as of March this year ANI had completed nearly 4,000 verifications, including issuing over 500 findings of integrity violations or referrals to competent authorities to confirm the existence of unjustified assets, possible criminal offences or other administrative violations. The 500-plus cases included 250 findings of incompatibility, 37 findings of administrative conflict of interest, 24 cases of suspected of unjustified assets referred to the courts and 239 referrals of possible criminal offences to prosecutors. A significant number of these cases have concerned high-ranking officials or dignitaries, including politicians from all the major political parties.[80] Just under half the total findings and referrals have been made under the 2010 law, an indication that ANI has been able to rebuild its track after the interruption caused when its previous legal framework was cancelled by the Constitutional Court. Importantly, the efforts ANI has made since 2010 to focus on the more serious and complex cases of unjustified wealth and conflicts of interest have continued and are delivering results, with the vast majority of conflict of interest cases and unjustified wealth cases that have been finalised, finalised since 2010.[81] The referrals to prosecutors have also increasingly related to suspicions of more serious criminal offences. The next step would be to further extend this track record, in particular in the fields of conflict of interest and unjustified wealth.

However, whilst the overall scale of ANI’s activity is significant, there has also been a notable increase in the length of verifications, in particular for conflict of interest and incompatibilities cases, reflecting in part the reduction in personnel numbers. Despite ANI's efforts, a significant number of cases have also been lost to the prescription periods introduced in the 2010 law, with a large proportion of the cases concerning holders of political office.[82]

Moreover, it is important to note that in the vast majority of circumstances, ANI is not competent to apply sanctions itself. The ultimate impact of the Agency’s activity therefore depends upon the prompt and rigorous follow up to their findings or referrals by other administrative and judicial authorities.[83] For a number of years the Commission’s reports have consistently flagged inadequate follow up to ANI’s cases by other administrative and judicial authorities and made a series of recommendations in this regard.[84] However, whilst there have been some small improvements since summer 2011, notably with the first final court rulings confirming unjustified assets and ordering their confiscation, the final results remain limited. Specifically, as of March 2012, in the four years ANI has been operational:

The Courts have confirmed the existence of unjustified wealth in just four cases.[85] In addition, whilst they had ordered the confiscation of assets totalling 1.1 million EUR in these cases, it is not yet clear whether these confiscation orders have been enforced.

Just two definitive findings of administrative conflict of interest have been reached, one by virtue of a final court ruling and the other having not been appealed.[86] In neither case have the respective contracts signed been cancelled, and in one case the courts have concluded that it is not possible to cancel the contract, meaning the benefits gained through the conflict of interest have not been annulled.

Prosecutors have issued just one indictment resulting from an ANI referral, whilst the tax authorities have issued just one additional tax demand as a result of an ANI referral.[87]

The track record on incompatibilities cases is more substantial. A significant number of incompatibility findings have become definitive – either through final judgments on appeals before the courts or because of the time period for appeal expiring – and whilst the total number of disciplinary sanctions remains rather limited, there have been a significant number of incompatible officials who have resigned, either before their file is referred to the disciplinary committee or before a disciplinary sanction is applied. In total definitive findings of incompatibility have been reached in 118 cases, resulting in 53 incompatible officials resigning of their own accord and disciplinary committees applying sanctions in a further 24 cases, including 8 dismissals.[88] However, the 24 sanctions applied also included six verbal or written warnings, whilst in a number of further cases disciplinary commissions either refused to take action or took no action before the disciplinary liability was prescribed or the mandate ended.[89]

In general, court proceedings remain lengthy for unjustified wealth cases, conflict of interest cases and even the relatively simple issue of incompatibilities. Some of the unjustified wealth cases now being finally determined by the courts were inherited by ANI and had actually first been referred to the judicial authorities in 2004 and 2005. All the unjustified wealth cases finally determined by the courts pre-date the new law. Other cases have been delayed by a number of retrials and procedural circuits as competence is debated between courts. Whilst trials of appeals to incompatibility findings are in some instances determined relatively promptly in first appeal, in other cases, often but not exclusively involving high profile parties, delays in obtaining hearings mean the trials take far longer. Significant delays are also routinely incurred pending first hearings in final appeals. As a result, the courts can take over two years to reach a final decision on an appeal to a simple case of incompatibility. This is problematic as it can mean that by the time the decision becomes final, the subject may already have served the rest of their mandate and no sanction can be applied. This could be addressed by streamlining the tiers of jurisdiction. Inconsistent jurisprudence also remains an issue between and sometimes within the same courts, indicating that there is not yet a settled interpretation in these domains, including on the elements of the violations or the degree of proof, whilst there have also been a number of controversial decisions raising considerable public comment.[90]

Celerity is also an issue in follow-up by the prosecution.[91] There remains an important need to strengthen co-operation between ANI and the prosecution, in particular the regular prosecution service. Although a protocol was signed with the Prosecutors’ Office attached to the High Court of Cassation and Justice, this does not appear to have yet delivered results. ANI should be an important source of investigative leads for the prosecution leading to indictments, whilst ANI should itself receive a significant number of notifications from the prosecution services. It will be especially important that the regular prosecution adopt a proactive and rigorous approach in following up notifications of possible conflicts of interest. Follow up by disciplinary bodies to final rulings of integrity violations also remains inconsistent, with some sanctions dissuasive and prompt, whilst in other cases sanctions are delayed, lenient or not applied at all.[92] Concerns have in particular been raised at the efficiency and dissuasiveness of the sanctioning regime for holders of elected office, including for Parliament.[93]

The CVM report of July 2011 raised specific concerns that the wealth investigation commissions re-established by the 2010 law may delay cases, act as an unwarranted filter – especially given their proceedings are not public and there is uncertainty as to whether their decisions are appealable – and duplicate the role of the courts in ruling on both substance, procedure and to the same standard of proof as the trial court.[94] The report also raised concerns that no steps had been taken to ensure consistent practice across the 15 different commissions. The Commission therefore recommended Romania to “take measures to unify the practice of the Wealth Investigation Commissions and to ensure they handle the cases efficiently without prejudging the decision of the courts”. Since last summer, steps have been taken to begin to address the first part of this recommendation, with a series of seminars held for members of the commissions in autumn last year, and a non-binding guideline is preparation. However, the other concerns remain.

Since their re-introduction in 2010, as of March 2012 nine cases have been decided by the commissions, with five sent to court and four dismissed, and a further seven pending. However, the deadline provided in law (three months for the commissions to reach a determination) is exceeded in the vast majority of cases.[95] Concerns that the commissions duplicate the courts have been confirmed.[96] In addition, it has not yet been established whether ANI can appeal their rulings, whilst concerns have been raised at the lenient practices of the commissions in certain cases. Given that the commissions are effectively functioning as a first instance chamber, but without the transparency of a court proceeding, and with one of the parties, the Agency, potentially denied the right of appeal, further changes would appear necessary. These commissions should explicitly constitute a pre-trial procedure and, if the current law is deemed not to provide such a possibility, ANI needs a right of appeal to their dismissal ordinances. Such changes would strengthen the efficiency of the proceedings and, by guaranteeing ANI a right of appeal, ensure the transparency and fairness of the process. The lack of clarity on the role of the Wealth Investigations Commissions makes difficult the task of the judges and prosecutors sitting in these commissions, who already have to juggle this work with their regular magistrate tasks.

Experience of applying the existing law has also led to the identification of further weaknesses that undermine the efficiency and impact of the integrity system. These include significant questions as to:

· The efficiency of the legal framework and its application in pursuing unjustified wealth. Assets have on occasions been dissipated whilst the investigation and subsequent legal proceedings are under way, with preventive measures not currently provided by law at the point of initial verifications and subsequent preventive measures not being taken by the judicial authorities. This may mean that there are no assets to confiscate when a final ruling is reached.

· The efficiency and dissuasiveness of the sanctioning of conflicts of interest. At present, separate legal processes are required to adjudicate on any appeals lodged against a finding of conflict of interest, and then to enforce that decision and cancel any legal acts signed whilst an official was in a conflict of interest. This can add years to the legal proceedings before sanctions are applied. Recent court jurisprudence has also called into question the ability of the courts to cancel contracts in such circumstances. So far not a single contract has been cancelled or prejudice rectified in the case of a conflict of interest. This is a clear shortcoming in terms of the efficiency and dissuasiveness of mechanisms to pursue and sanction conflicts of interest.

The follow-up to ANI’s findings or referrals therefore continues to raise questions as to its celerity, rigour and dissuasiveness, with a negative impact on the dissuasiveness of ANI’s activity. Despite ANI's endeavours, the end results of the integrity system are therefore not yet convincing and the asset and interest verification procedure is not yet delivering the results and impacts expected. There are also systemic weaknesses which undermine the efficiency of current efforts. These weaknesses are known to the Romanian authorities and a working group established by the Agency and the Ministry of Justice has produced a series of legislative proposals. These include streamlining the degrees of jurisdiction, strengthening sanctions and addressing deficiencies in the legal provisions governing the Wealth Investigation Commissions and the handling of conflict of interest cases. However, these proposals have not yet been proposed in new legislation. This reflects persisting concerns over the stability, sustainability and political support for the Agency and its activities, in particular concerns as to the tendency of debate on ANI in Parliament to turn into a fundamental challenge to its functions and powers. These concerns have increased in the light of the events of recent weeks. The experience of the past five years suggests that improvements to integrity in public office requires not only ANI, but also other key actors in the executive, the legislature and the judiciary, to be committed to a comprehensive framework for addressing integrity.

4. Benchmark 3: Building on progress already made, continue to conduct professional, non-partisan investigations into allegations of high-level corruption

The second component of the combating of corruption monitored under the CVM is the pursuit of high-level corruption. At the point of accession, the quantity and quality of non-partisan investigations into allegations of high-level corruption was increasing and progress was continuing to be made in the fight against corruption, particularly in the form of indictments. However, it was noted that no final convictions had yet resulted from these cases and it was considered that further indictments, trials, final convictions and dissuasive sentences in high-level cases were needed to ensure sustainability and irreversibility of the recent progress. Concerns also remained as to the political commitment to ensuring the sustainability and irreversibility of the progress made.[97] The key objectives that Romania therefore needed to address with a view to fulfilment of this benchmark were to maintain the legal and institutional stability of the anti-corruption framework and to consolidate and further expand the track record of prosecuting high level corruption.

Legal and Institutional Framework

The stability of the legislative and institutional anti-corruption framework has been closely monitored under the CVM over the past five years. On the legislative side, there have been a number of proposals to change the criminal and criminal procedural law on aspects related to corruption. Some of these attempts to weaken the framework were successful – such as the decriminalisation of certain bank fraud offences. Others have not succeeded, including recent proposals in Parliament to take elected and appointed officials out of the scope of corruption offences and to effectively decriminalise conflict of interest.

On the institutional side, in 2007-2008, there were concerns about attempts to change the nomination and revocation procedures for the leadership of General Prosecutor's Office and the National Anti-Corruption Directorate (DNA).[98] So far these procedures have remained intact and the DNA leadership has remained in office, whilst the DNA's budget and staff has also remained stable.[99] However, in recent months there have been calls by some politicians to amend the nomination and revocation procedure, including references to institutional change floated by members of the new ruling coalition. Persistent doubts therefore remain as to whether there is a broad based political consensus in support of the anti-corruption framework.

Results achieved by DNA

Since 2007 DNA has continued to build a convincing track record of impartial investigations. It has taken forward cases against persons from all political parties. It handles some 2,000 files on average per year and sends to courts roughly 200 cases per year.[100] DNA has shown a high degree of proactiveness in its actions, illustrated by the steady rise in the number of DNA investigations opened ex officio.[101] The average time from pressing charges to indictment is 9-10 months, with roughly 60% of the investigations taking less than 6 months.[102]

Over the past five years, DNA has established good cooperation with other institutions, notably with the Directorate for Investigation of Organised Crime and Terrorism within the General Prosecutor’s Office (DIICOT), the General Anti-Corruption Directorate (GAD) within the Ministry of Administration and Interior and the public prosecutors’ offices countrywide. Overall, there has been a substantial increase in the number of notifications received by DNA over the past five years.[103] Most notifications have been submitted by the local prosecutors' offices (60-67%), GAD (15-20%), followed by DIICOT, the General Prosecutor’s Office, the Financial Guard, the police units and inspectorates, the National Agency for Fiscal Administration and the National Office for Prevention and Fight against Money Laundering and Financing of Terrorism. However, notifications from other important institutions in this field, such as the National Authority for Regulating and Monitoring Public Procurement (ANRMAP) and the Customs Authority, have been few. There have also been few notifications from other internal control services of public institutions.

In total, as a result of their investigations, DNA can demonstrate significant results. Between 2008 and 2011 DNA sent to trial cases with a total estimated damage of approximately €1.13 billion. In the last five years DNA has indicted a considerable number of current or former high-level officials, including 14 MPs, 9 ministers (including a former Prime Minister), 11 officials with rank of state secretary or under state secretary, 104 mayors and deputy mayors, 6 presidents and vice-presidents of county councils, 9 prefects and under-prefects, and 18 directors and general directors of state owed companies. DNA has also robustly pursued corruption within the judiciary, indicting 40 magistrates, including pursuing a number of important cases against senior judges.[104]

However, these successes have not been achieved without difficulties. The independence of the magistracy has been challenged on numerous occasions by comments by politicians on particular cases. This has included a number of calls to dismiss senior DNA prosecutors, protests against the arrest of senior politicians, apparent requests to undertake disciplinary investigations into judges who have tried high-level corruption cases, and attempts to influence the conduct of cases in court. Concerns regarding political challenges of judicial independence have increased in the light of the events of recent weeks (see main report). A recent criminal case has been opened following evidence of an attempt to unduly influence the position of a state body in an emblematic case. The state body had made a civil claim as an important part of the case but, following a change in the institution’s leadership and their hierarchical subordination by the new Government, surprisingly withdrew the claim. The public controversy which resulted led to the dismissal of the institution’s leadership and the reinstatement of the civil claim but the chain of events raised many questions.[105]

The dissuasiveness of judicial decisions against corruption

CVM reports have consistently pointed to the importance of effective prosecution and dissuasive sanctions in addressing the problem of high level corruption. Over the past five years, there has been a substantial increase in the number of both final and non-final convictions in corruption cases investigated by the DNA.[106] In particular, a major increase in the number of court decisions could be noted in 2011 following a number of legislative and administrative measures taken to accelerate court proceedings. Just 13% of the total number of cases decided upon by the courts have ended in acquittals, some of these acquittals resulting from the decriminalisation of certain offences.[107] Expert opinion consulted by the Commission has concluded that this illustrated a professional and robust approach by the DNA.

Among the defendants convicted for corruption offences through final court decisions between 2006-2011 were a number of influential defendants, including four current or former MPs, one former State Secretary, 12 mayors and deputy mayors, one under-prefect, 24 magistrates and 20 directors of national companies and public institutions. An increase in the number of high-level officials convicted for corruption can be noted in particular from 2010. However, until 2011, virtually no decisions were reached in cases involving the more politically influential defendants.

The dissuasiveness of sanctions applied has also been a recurrent concern over the five years. This remains an issue of concern. Despite some small improvements, with an increase in penalties of over five years imprisonment, statistics for the last four years show that approximately 60% of the imprisonment sentences set penalties at the minimum level or below.[108] The percentage of penalties imposed at or below the minimum level provided by law was actually higher in 2011 than 2008 and if this trend were continued, reduced penalties for corruption in the new Criminal Code would reduce dissuasiveness still further.[109] Similarly, despite a fall in the percentage of suspended sentences since 2008, over 60% of sentences for high level corruption cases are still suspended.[110] In 2011, all three of the current or former MPs convicted by final decision received suspended sentences. In the current legal framework, suspension of the execution of penalties applies to all penalties, not only to prison sentences. If judges decide on a suspended prison sentence they cannot, for example, apply a sentence affecting the right to run for public office. This means two of these MPs, despite final convictions for corruption, remain sitting Members of Parliament.[111] A further current Member of Parliament, who was convicted of corruption by final decision this year, also remains a sitting Member of Parliament by virtue of having received a suspended sentence.

Nevertheless, in a sign of potential change, since summer 2011 there has been an acceleration in the number of decisions against high ranking defendants, including the first final decisions against the more politically influential defendants, and the first prison sentences for high ranking defendents. In 2012, the courts convicted and sent to prison one former Minister and two current Members of Parliament, one of whom is a former Prime Minister. These defendants became the first former Ministers and current Members of Parliament to be sent to prison for corruption.[112] In July 2012 a former State Secretary was sentenced to five years in prison for abuse of office – a case which also showed the HCCJ making a critical examination of decisions by lower courts.[113]

Efforts to promote consistent, proportionate and dissuasive penalties have also been taken. A compilation of court decisions relevant to penalties in corruption cases issued by High Court of Cassation and Justice (HCCJ) and the courts of appeal was published on the HCCJ website in 2010 and has twice been updated. In 2011, the HCCJ issued two studies accompanied by guidelines on individualisation of penalties for certain corruption offences. The guidelines covered passive bribery, active and passive trading in influence. Guidelines on aggravating and mitigating circumstances on a wider range of crimes were also published by the HCCJ in 2011. These recommendations and guidelines were well received by practitioners, with requests to extend this action to cover all corruption offences.

Dissuasiveness of judicial action also relies on the effective pursuit, seizure and confiscation of criminal assets. During 2008-2011, DNA estimated damages of €1.13 billion in cases that reached the courts. The prosecutors seized during the reference period assets worth €532 million. In 2011, DNA issued seizure orders for assets worth €212 million and effectively seized €167 million. In the same year, the courts ordered convicted defendants to pay €33.3 million in damages to public authorities and state owned companies. €14.7 million was voluntarily returned by defendants during investigations or trials, whilst a further €1.9 million have been returned to the bribe givers who denounced the bribery act.[114] However aside from these compensations to civil parties, in corruption case the courts ordered the confiscation of just €320,000. Furthermore, no information is available on the amounts actually recovered by the fiscal authorities. Overall, the track record on asset recovery in the courts appears to fall short of expectations. Third-party confiscation remains problematic and with no common vision of practitioners of how to deal with it. The Constitutional provision according to which the licit origin of property is presumed further contributes to a non-unitary practice and cautious approach towards other forms of confiscation. Whilst ANI can assist, and has assisted DNA to pursue unjustified wealth of public officials, ANI cannot follow assets transferred to third parties, nor independently freeze assets.

A new law on extended confiscation was passed by Parliament in 2012. This law could add to the dissuasiveness of penalties and may contribute to a change in mentality. It could also lead to more pro-activeness of law enforcement and judiciary in carrying out financial investigations and adjudicating on asset recovery.

Parliamentary immunities

Although parliamentarians do not enjoy full immunity, parliamentary approval is required to approve the opening of criminal investigations into parliamentarians who are Ministers, as well as to authorise the arrest or search of any parliamentarian. Over the past five years, there were no improvements in the framework regarding immunities, whilst the immunities offered to existing Ministers were extended to former Ministers by the Constitutional Court.

Since 2007, DNA, through the General Prosecutor, filed 8 requests to the Parliament for lifting immunity from investigation of MPsand 5 to the Romanian President with regard to the investigation of Ministers and former Ministers who are not MPs. [115] The Parliament approved 5 of these 8 requests, dismissed two and a decision is pending on one request, while the President approved all the requests. In another case regarding an MP (and former minister), the extension of the criminal investigation to other offences was dismissed by the Parliament. As far as search is concerned, the Parliament rejected a request against an MP (and former minister). Since 2007, there were three requests for preventive arrest of MPs: in one case the request was dismissed and in two other cases admitted.[116] The refusal to allow the opening of criminal investigations establishes a de facto immunity, whilst refusal to allow the arrest or search of parliamentarians can make it very difficult for investigations to proceed in a normal way.

The length of time taken by Parliament to reach decisions to lift immunities has been extremely variable,[117] and the fact that there is no requirement for Parliament to motivate its decisions means that the consistency of decision making cannot be established. In one case, Parliament approved the opening of an investigation, but did not approve search. In 2011, the Commission recommended that clear procedural rules should be put in place for Parliament's decisions to lift immunity.[118] The new National Anti-Corruption Strategy includes measures pointing to the reform of the immunities regime. It could also stimulate change concerning the approach of Parliament towards parliamentarians with convictions for serious offences: Currently, there are three MPs with final convictions for corruption offences who are still active in Parliament.

The pursuit of corruption in the courts

Over the first four years of the CVM monitoring, the energy with which DNA pursued corruption cases was in stark contrast to the follow-up of the high-level corruption cases in the courts.[119] By 2009, there had been no first instance decision in the corruption files of highest public interest. As an example, a case against a former Deputy Prime Minister indicted in mid-2006 has seen a series of procedural steps to little effect. It was returned to DNA to complete the investigation, sent to the Constitutional Court for two unconstitutionality challenges and afterwards from HCCJ to the first instance court and then to tribunal level for jurisdictional reasons. It took three years before the indictment was even read in court[120]. By the third quarter of 2011, only procedural aspects had been touched upon in the case.

The increase in court decisions from 2011, notably in first instance, followed a number of legislative, administrative and operational measures. Certain legal obstacles were removed, such as the abusive recourse to unconstitutionality exceptions in order to delay court proceedings. Over time, almost all important high-level corruption cases were suspended for unconstitutionality claims; for some, the suspension lasted over one year. The frequent recourse to these options in corruption trials made the improvements introduced by amendments to the Law on the Constitutional Court in 2010, as well as other amendments introduced by the Small Reform Law the same year, of particular importance. The Small Reform Law introduced measures which accelerated court proceedings, including improved summoning rules, new provisions on sanctioning the abuse of procedural rights by the parties, elimination of the suspension of the criminal trial for illegality challenges, and the possibility to plead guilty.[121]

Nevertheless, in mid-2011, there were still serious concerns as to the overall duration of court proceedings: by that stage, whilst 70% of DNA trials were finally determined in less than 3 years of court proceedings, in the remaining 30% of cases, many of which involved high level defendants, few had reached a first instance court decision in that time, let alone a final decision. A disproportionate number of these cases concerned high level officials.[122] The Commission report of July 2011 raised concerns as to the capacity of the judiciary to deal with complex and high profile cases and called for urgent measures to be taken to improve trial management and judicial practice, and to allocate sufficient resources.[123]

In line with the Commission's recommendations of July 2012, in the last twelve months the High Court of Cassation and Justice (HCCJ) has taken a series of steps seeking to improve the celerity of high level corruption trials. The HCCJ plays a particularly important role, both as the responsible court for many key cases, and in terms of an example to the court system as a whole. Since summer 2011, building upon their own analysis undertaken in 2010-2011 and the Commission’s assessment, the HCCJ implemented a number of managerial and administrative measures to ensure a more effective use of courtrooms, as well as arranging to use spare rooms from other courts. New premises were allocated to HCCJ in November 2011 and should be ready for use in the coming months.

The HCCJ visibly accelerated the hearings in a number of high-profile cases, setting a weekly hearings in some instances, strengthening judicial practice and sometimes challenging apparent delaying tactics such as the absence of defence lawyers in court. The result was a significant increase in the number of both first instance and final verdicts.[124] There was a particular effort to focus on cases where the prescription term was approaching (see below). These improvements in management and practice need to be continued and expanded. Even today, there are still cases where the duration of proceedings remains excessive.

The improvements made by the HCCJ over the last year have shown that the courts have discretion to take a more robust approach to ensuring that the course of justice is not unjustifiably delayed. For example, the HCCJ leadership asked for additional budget from the Ministry of Justice in order to secure payment of expertise from the budget of the courts, avoiding the risk that experts would rely on the defence for payment.[125] Also, some HCCJ judges applied new solutions to avoid the risk that expertises would bring unnecessary delays.[126] Training sessions on the use of special investigation measures were held to help judges deal more swiftly with the challenges of the defence regarding the use of such evidence. The new criminal procedure code will give more discretion to judges in dealing with potential abuses of procedural rights. This will be an important opportunity to address the perception that the courts are too ready to allow the course of justice to be delayed.

A particular problem identified in relation to the celerity of court proceedings, with particular implications for corruption cases, is related to the statute of limitations. In July 2011, the Commission report mentioned that in three cases sent to court in 2006-2007, full or partial prescription had been reached and also warned about the risk of impending statute of limitation in a number of other high-level corruption cases. Since then, the HCCJ issued its interpretative ruling to exclude from the time period used to calculate the prescription date, time periods during which a trial was suspended pending the ruling of the Constitutional Court on an exception of unconstitutionality. This led to an extension of the prescription periods in a number of cases. By focusing the acceleration of hearings on cases approaching prescription, the HCCJ was able to reach a number of first instance rulings and some final rulings in key high-level corruption cases.[127]

In the new Criminal Code, the level of penalties for certain corruption offences is lower than in the current Criminal Code: because of the way in which prescription is calculated, this will consequently lead to shorter prescription periods. Due to the principle that the most favourable law applies, there might be a risk that some ongoing cases not yet finalised on entry into force of the new criminal code may become statute-barred. An analysis of 26 ongoing high-level corruption cases showed that with the entry into force of the new criminal code, in 10 of these cases, the statute of limitations will decrease by roughly 20%, reducing some prescription terms to 2013-2014 rather than 2016-2017 as it is the case now. In one case against a former Deputy Prime Minister which, according to the current legal provisions, has a prescription period of 22.5 years, the entry into force of the new criminal code would lead to a drastic reduction of the prescription term to 7.5 years and consequently to the dismissal of the file.[128]

A new calculation method of the prescription period was introduced through amendments to the existing Criminal Code adopted in 2012 with a view to offsetting this effect. Also, some further increase of penalties is reportedly being considered through the implementing law of the new Criminal Code. However, there are different views among practitioners as to the application of the most favourable law principle when both determining the penalty and calculating the prescription.[129] It would be important to have clarity on this issue before the entry into force of the criminal code, to ensure unitary practice and to allow measures to be taken to prevent ongoing criminal files reaching prescription.

Experts consulted by the Commission have also noted a more fundamental issue. The way in which prescription works in Romania, with no interruption of prescription on indictment (or even on first instance verdict) as is the case in many other legal systems, opens up the opportunity to use delays in court to escape justice. A study carried out by Transparency International in 2010 on the statute of limitations and prosecution of corruption in the EU underlined that even though the limitation periods seem to be sufficient, the procedures stipulated by law create diverse possibilities for offenders to avoid prosecution.[130] The study recommends that the Romanian statute-barred regime extends and better defines the grounds for interruption and suspension of statute of limitations. When identifying recurrent weaknesses in the statutes of limitations regimes in the EU, the study notes the risk of including the appeal stage in the calculation. The study points to a number of options which might contribute to a debate in Romania on how to reform prescription.[131]

One of the areas where weaknesses persist in the judicial practice in courts and where not much progress has been made in the last five years regards corruption in public procurement. In 2010 and 2011, DNA handled 54 cases of public procurement.[132] In these cases, 24 indictments were issued[133]. By mid-2011, of the 43 DNA cases on public procurement sent to courts between 2006 and 2010, final decisions had been reached in only two cases. Since July 2011, five convictions were issued in first instance against 13 defendants in public procurement cases. Training sessions for magistrates focused on public procurement cases were held, notably in the last couple of years.

Ombudsman

The Ombudsman plays an important role in the fight against corruption in Romania. This post is empowered to conduct investigations concerning alleged illegal acts of the administration. It is an independent body, which can act on the basis of an appeal by any person or on its own initiative. The Ombudsman is also entitled under Article 26(2) of Law 35/1997 to report to the parliament or to the prime-minister on "grave cases of corruption" he finds in the course of his investigations.

The Ombudsman is also the only institution that can challenge directly an Emergency Ordinance in front of the Constitutional Court. On 3 July 2012, Parliament took a decision to terminate the mandate of the Ombudsman. This raised issues about the ability of the Ombudsman to perform its important functions without political interference.

5. Benchmark 4: Take further measures to prevent and fight against corruption, in particular within the local government

The final element of the anti-corruption efforts monitored under the CVM is corruption prevention and measures to tackle corruption in the public sector. The key objective that Romania needed to address with a view to fulfilment of this benchmark was to establish an effective strategic, proactive and preventive approach to reducing corruption, to minimise the risk of corruption occurring and to detect irregularities when they happen. This Benchmark also provided for the follow up of horizontal corruption-prone sectors, such as public procurement, as well as the law enforcement response.

Corruption perception and indices

Most recent perception surveys, such as the Eurobarometer on attitudes of Europeans towards corruption published in February 2012, show that the confidence of Romanian citizens in the effectiveness of anti-corruption measures by the Romanian authorities is very low. From 2007 to 2011, a clear majority of Romanians participating in the Eurobarometer surveys considered that corruption is a major problem in their country (from 93% to 96%).[134] In addition, 67% of the Romanians considered that corruption increased in the last three years in their country. Institutions perceived by the public as suffering high levels of corruption include customs, police, the judiciary, and politicians at national and local level. Healthcare is also considered vulnerable to corruption.

In terms of international indices, Romania's rating for corruption in the Freedom House Nations in Transit ratingshas shown no visible progress over the past five years[135]. The latest report published in 2012 concludes that there has been a rather slow development across the board. The Global Competitiveness Report 2011-2012 of the World Economic Forum identifies corruption as the fifth biggest obstacle to doing business in Romania.[136]

National anti-corruption strategies

From 2005 until 2011, the anti-corruption efforts of the Romanian authorities were guided by two strategies: from 2005-2007, a strategy coordinated by the Ministry of Justice and, from 2008-2010, a strategy coordinated by the Ministry of Administration and Interior, which was extended up to 2011 to allow a new strategy to be finalised. In 2010, acting upon a recommendation by the Commission, Romania commissioned an independent study to assess the impact of these two anti-corruption strategies, which would serve as a basis to draft a new strategy.[137] The study concluded that whilst these strategies had been implemented to a large extent, their impact was significantly less noticeable. The study identified shortcomings including the absence of indicators to measure practical impact, a top-down approach in the drafting and implementation of the strategies, the lack of ownership of the main players and the insufficient involvement of the legislative and judicial branches. The study recommended that a new strategy should take a multidisciplinary approach, involving all three branches of the state and civil society. It also recommended to strengthen the focus on prevention and risk assessment, as well as to ensure stronger coordination at the highest political level and better monitoring.

The new National Anti-Corruption Strategy was adopted by the Government in March this year, re-endorsed by the new Government in May without change and further endorsed by the Parliament in a declaration adopted by the Parliament in June. The new strategy drew on a wide consultation process involving civil society, as well as the recommendations of the independent assessment of the previous strategies. The new strategy revolves around four general objectives: preventive measures, anti-corruption education (including awareness raising), administrative and criminal measures, well as monitoring.[138] Sectorial plans are to be adopted at all levels of all public institutions within three months from the adoption of the strategy. Public institutions are also required to identify vulnerabilities and associated risks.

The strategy will be monitored by the Commission for monitoring the progress in the field of judicial reform and fight against corruption, which involves most relevant stakeholders. Co-ordination meetings will be organised every six months, with overall implementation co-ordinated by the Minister of Justice. Five co-ordination platforms have been established, representing the main categories of stakeholders (independent authorities, central public administration, local public administration, business and civil society). A number of monitoring tools are provided for, ranging from self-assessment mechanisms to thematic assessment missions. Despite possible gaps identified, including the absence of budgets devoted to the different measures, a number of imprecise deadlines, and a lack of clarity over impact indicators, the strategy represents a comprehensive framework with dedicated monitoring, in line with the Commission recommendation of July 2011. If now effectively implemented and the potential gaps addressed, it provides a substantial framework for strengthening Romania’s anti-corruption efforts.

Anti-corruption measures in public administration and by civil society

The General Anti-Corruption Directorate (GAD) within the Ministry of Administration and Interior is one of the pioneers of anti-corruption measures applied at regional and local level. Established in 2005, GAD is unique in being competent to apply both preventive and, as judicial police, repressive measures against corruption within the police, as well as other structures within the Ministry of Administration and Interior (MoI).

Over the last five years, GAD can demonstrate increasing results in the identification and pursuit of corruption within the MoI, with an expanding number of prosecutors’ investigations and indictments resulting from their notifications. Between 2007 and 2011, GAD submitted 1,047 notifications to the DNA. This represents approximately 20% of the overall notifications received by DNA from law enforcement, prosecutors’ offices and public institutions.[139] As a result of GAD notifications, DNA have issued indictments in 222 cases, whilst GAD also submitted 6,388 files to the public prosecutors’ offices (other than DNA), leading to 836 indictments.[140] In the courts GAD investigations have led to 538 final decisions against 717 defendants.[141]

In recent years GAD can also demonstrate an exponential increase in the number of ex officio actions, indicating a proactive approach.[142] They have also shown proactiveness in their willingness to look beyond their immediate responsibilities for police and MoI staff, and accept frequent delegations from prosecutors to undertake investigative tasks in other fields, given their expertise, equipment and use of special investigative measures.

GAD can also demonstrate several important large scale investigations undertaken in co-operation with the DNA, including a large-scale operation targeting border crossing points, linked in particular to cigarette smuggling. Over 230 border police and customs officers from six border crossing points were prosecuted for bribe taking and participation in an organised crime group. A recent research study commissioned by FRONTEX on anti-corruption measures in EU border control has estimated that the border guards in this dismantled network made roughly €500 per day from bribes.[143] The bribes taken were shared with fellow officers who were not in the shift, and with their superiors.[144] This case followed earlier, sizeable investigations into corruption in the issuing of driving licenses and has been followed by further smaller-scale smuggling cases, investigated in co-operation with DIICOT, indicating significant corruption networks targeted. However, there remains important further scope to expand GAD’s track record in pursuing other areas of serious and complex corruption within the Ministry including cases involving high level officials and corrupt links between police and organised crime, where there are currently few reported investigations.

Aside from their corruption investigations, GAD has also been at the forefront of developing preventive activities. For the past five years, GAD has monitored the MoI activity in the field of prevention through a number of performance indicators ranging from the reporting of corruption to awareness raising, training activities and cooperation with NGOs. Starting in 2009, GAD introduced a clear-cut risk assessment system to identify vulnerable areas where priority actions are needed. The risk assessment methodology has been implemented within all MoI structures.[145] GAD has also carried out a number of broader activities, including research studies looking at issues like patterns of corruption in specific areas and the links between corruption and organised crime. It has also run several successful awareness campaigns and promoted more user-friendly channels for the reporting of corruption. A reporting hotline (TELVERDE) is fully operational and has proven its effectiveness through an increasing number of reports received and criminal files initiat