EUROPEAN COMMISSION Brussels, 25.1.2017 SWD(2017) 25 final 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 {COM(2017) 44 final}



Benchmarks to be addressed by Romania pursuant to Commission Decision of 13/XII/2006 establishing a mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption: 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 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 Benchmark 3: Building on progress already made, continue to conduct professional, non- partisan investigations into allegations of high- level corruption Benchmark 4: Take further measures to prevent and fight against corruption, in particular within the local government List of acronyms ANABI: National Agency for the management of seized assets ANAF: National Agency for Fiscal Administration ANI: National Integrity Agency ANAP: National Agency for Public Procurement ARO: Asset Recovery Office CCR: Constitutional Court CVM: Cooperation and Verification Mechanism DGA: Anti-corruption Directorate General – Ministry of Internal Affairs DIICOT: Directorate for Investigating Organised Crime and Terrorism DNA: National Anti-Corruption Directorate HCCJ: High Court of Cassation and Justice MoJ: Ministry of Justice NAS: National Anti-corruption Strategy NIC: National Integrity Council NIM: National Institute of Magistracy SCM: Superior Council of Magistracy

WIC: Wealth Investigation Commissions References to "CVM reports" refer to the Commission report and the accompanying Technical Report CVM report July 2012: COM(2012) 410 and SWD(2012) 231 - 5 year assessment of progress CVM report 2013: COM(2013) 47– report of progress July 2012 to December 2012 CVM report 2014: COM(2014) 37 and SWD(2014) 37– report of progress in 2013 CVM report 2015: COM(2015) 35 and SWD(2015) 8– report of progress in 2014 CVM report 2016: COM(2016) 41 and SWD(2016) 16 – report of progress in 2015

1.Introduction This technical report sets out the information and the data which the Commission has used as the basis for its analysis under the Co-operation and Verification Mechanism (CVM). This information has been collected from a variety of sources. In the first place, the Commission has had the benefit of working closely with the Romanian government and key judicial and State bodies on CVM issues, which have provided detailed and focused reports, as well as in frequent face-to-face meetings. The Commission services follow developments through a permanent presence in Romania. Commission contacts with the Romanian administration across the full range of EU policies also help to inform this work. The Commission's work is also supported by independent experts from other Member States, who participate in a fact-finding mission once a year that includes visits to institutions outside Bucharest. The Commission also meets with non-governmental organisations active in the area of judicial reform and anti-corruption projects, with judges and prosecutors unions, and with representatives of the business community. This report remains the responsibility of the Commission services. The Commission further draws on the various studies and reports that are available from international institutions and other independent observers in the field of judicial reform and the fight against corruption. Since the time when the CVM benchmarks were drafted, there have been major developments in ECHR case-law, international standards and best practices, and comparative information on national justice systems in the EU , which also help to give an objective and comparable measure of the development of the Romanian judicial system and fight against corruption. The CVM Commission Decision of 2006 defined four benchmarks for Romania. These benchmarks have never been modified. The assessment of the progress in Romania has involved looking at the structural conditions (such as laws, institutions, and resources); at the results and track record; and at sustainability issues. Each year, the Commission makes recommendations with regard to each benchmark to reflect progress and how it might be sustained or extended in a time horizon of the coming year. The Commission also supports the efforts of Romania in achieving the CVM objectives through funding under the European Structural and Investment Funds. In the 2007-2013 period, Romania implemented a number of projects in the anti-corruption and judicial reform area. The total amount of funding from the European Social Fund (ESF) was EUR 16 million. The main beneficiaries were the Ministries of Public Administration, Justice, Education and Health. European Regional Development Funds (ERDF) were invested in actions relating to integrity control projects (including PREVENT – see below) and the capacity of public procurement agency, for a budget of about EUR 15 million. EU funds will be crucial for the implementation of the National Anti-Corruption Strategy and the Strategy for the Development of Justice, and the respective action plans finalised in 2016 have identified the areas that could be funded through EU funds. EU funds have also been allocated to support the Strategy on Public Procurement and the Strategy for the reform of Public Administration. In the 2014-2020 period, the Administrative Capacity Programme (ESF) will provide funding of about EUR 103 million for judicial reform projects, including 35 million specifically for anti-corruption, and EUR 35 million to support improvements in public procurement. ERDF resources of up to EUR 15 million will be invested in capacity building and technical assistance in public procurement, in fraud prevention for Management Authorities and in the Fight Against Fraud Department (DLAF). Financing by EU funds also contributes to the stability of the objectives of the strategies as agreed with the Commission, some strategies being ex-ante conditionalities for using the Funds. 2.The Judicial Process 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 CVM in Romania, focusing on establishing an independent, impartial, and efficient judicial system, strengthening the consistency of the judicial process, and improving the transparency and accountability of the judiciary. 2.1.Overview of developments under the CVM Whilst difficult to measure precisely, there are some clear indicators that can be used to assess judicial independence. The prosecution and conviction of many prominent politicians in Romania is a sign that the underlying trend of judicial independence is positive. The same trend can be seen in opinion polling on perceived judicial independence and trust in the judiciary. But as CVM reports have recorded, there has also been a reaction to this trend: political and media criticism of magistrates and judicial institutions has been frequent, with attacks against the National Anti-corruption Directorate continuing to intensify in 2016. The risk is that such criticism undermines public confidence in the judicial system as a whole, especially when it comes from government or Parliament. The Superior Council of the Magistracy (SCM) plays a central role, as the Constitution establishes the SCM as main defender of the independence of Justice. In 2012 the Commission reported that "Over the last five years, the SCM has had an uphill task to establish public confidence, as it initially failed to recognise that protecting the reputation of the judiciary is part of its core functions. But decisions taken by the SCM in June 2012 to more proactively defend the independence of the judiciary and the rule of law are steps which show the SCM more ready to exercise its Constitutional role and address the issue of public confidence". In the following years, CVM reports have highlighted that the SCM has increased the emphasis on defending the independence of justice and the reputation, independence and impartiality of magistrates, working more systematically and with growing confidence. The procedure in place since 2012, involving investigation of the facts by the Judicial Inspection (JI) and a decision by the SCM plenum, also made public through press releases and information to media, is now well established. The SCM considers that its actions in defence of the independence of justice have helped this issue to be taken more seriously by citizens and politicians. However, the difficulty in securing an equivalent level of coverage for the SCM press statements compared to the initial criticisms was noted in the 2015 and 2016 CVM reports. Although the decisions of the SCM are always transmitted to the National Audio-Visual Council, this has not resulted in effective redress or corrections in the media that launched or relayed the attacks. In January 2016, the Commission therefore recommended that the new SCM should determine if more could be done to provide appropriate support to individual magistrates facing criticism undermining judicial independence.

As highlighted already in many CVM reports, the space that such allegations receive in the public sphere and the uneven public reaction against them illustrate that the principles of judicial independence have not been fully internalised. Successive recommendations from the Commission that "the Code of Conduct for parliamentarians [should] include clear provisions so that parliamentarians and the parliamentary process respect the independence of the judiciary" have not been achieved.A draft Code of Conduct was elaborated in Parliament in 2014 and will be reconsidered by the newly elected Parliament, but it did not include provisions on the respect of the independence of the judiciary. The Constitutional Court has a key role in further development of the rule of law and the consolidation of an independent justice system. CVM reports have highlighted that notably since the constitutional crisis of 2012, many decisions of the Constitutional Court have contributed to upholding the independence of justice, in particular in terms of respect of court decisions, and have sought to provide solutions linked to the balance of powers and respect for fundamental rights that could not be solved by the justice system alone. The rigour of entry procedures into the magistracy has also been seen to have placed an important part in the independence, as well as the professionalism, of the magistracy. In the period 2007-2012, nearly half of the new recruits entered the magistracy using provisions in the law allowing for extraordinary direct entrants, as opposed to the two-years training at the National Institute of Magistracy (NIM). Following successive recommendations from the Commission, more robust appointment procedures based on open competitions to enter the magistracy or be promoted to the High Court of Cassation and Justice were put in place between 2007 and 2012, and the entry into profession training at the NIM has been generalised for all new entrants. The 2016 CVM report noted that most magistrate positions, including leading positions in courts and prosecutors' offices, posts are filled through open competitions organized by the SCM and the NIM. Throughout the years 2011 - 2016, the capacity and the organisation of the NIM continued to be re-enforced with additional personnel and training staff, resources, including important external funding, while the training programmes continued to improve and adapt to the needs of the judiciary. In the period 2011-2016, an important part of the training curriculum focused on the new civil and criminal Codes. International training activities were also developed. Romania also participates actively in the European training programmes or other multi-national programmes. In 2015, more Romanian judges, prosecutors and lawyers than the average of all EU Member States participated in training on EU law or law of another EU Member State, surpassing the training targets set out in the Commission´s Communication (2011) 551 on European judicial training. Concerning appointments in leadership positions of the key judicial institutions – the High Court of Cassation, the Public Ministry and the National Anti-Corruption Directorate, and the Superior Council of the Magistracy-, CVM reports have repeatedly emphasised the importance of transparent and merit-based selection procedures as a way to provide robust leadership, avoid political interference in senior appointments and support judicial independence. The reports have noted a mixed track record in this regard. The January 2016 CVM report noted that 2016 will see a series of appointments to key posts and both the process and the results would be a key test of the ability of the judicial system to maintain the reform process through a time of change. , A central component of the judicial reform initiatives has been the modernisation of legislation. In 2009 Romania adopted new substantive Civil and Criminal Codes and in 2010 their accompanying procedural Codes, aiming to modernise the substantive law and to improve the efficiency and consistency of the judicial process. In 2011 the Civil Code entered into force and in 2013 the Code of Civil Procedures. The 2016 CVM report noted that he transition towards the application of new Code of Civil Procedure was coming to an end, with the large majority of cases in courts now falling under the new codes. This major reform is thus nearly finalised: however, the need to introduce logistical and structural changes in the courts has led to successive delays of certain provisions, with no clear plan to tackle the issue of how to update courts to the needs of the new Codes. The 2016 CVM report recommended that the Government and the SCM should set up a clear plan to ensure that the deadline of January 2017 for the implementation of the remaining provisions of the Code of Civil Procedures can be respected. The new Criminal Code and Code of Criminal Procedures entered into force on 1st February 2014. Overall this major reform step has been seen as a success by the judiciary, as well as by civil society. CVM reports in 2015 and 2016 concluded that judicial institutions, judges and prosecutors, and court clerks, have shown professionalism and the capacity to make the reform work, while the Ministry of Justice has constantly supported the reforms through budget and resources allocations and adoption of necessary legal amendments. Since their entry into force a number of developments have called into question the stability of the Codes, and required adoption of urgent amendments , but these have been pending in Parliament for over two years. Eventually, to ensure stability and legal certainty the Government adopted several Emergency Ordinances in 2016, but these still need to be adopted in Parliament. At the point of Romania’s accession to the European Union, one persistent shortcoming identified was the inconsistency in court decisions. The major legislative reforms have all sought to strengthen the mechanisms for consistency. In 2010 the Small Reform Law refocused the competences of the High Court of Cassation and Justice (HCCJ) on cassation and consistent interpretation of the law, and streamlined the unification mechanism of appeal in the interest of the law. The Civil and Criminal Procedure Codes further consolidated the unification and cassation role of the HCCJ and introduced a new mechanism, preliminary ruling, for ensuring uniform interpretation before a final decision is taken. CVM reports have noted the increasing use and the effectiveness of the legal unification mechanisms since the entry into force of the Civil and Criminal Procedure Codes. Next to the legal mechanisms, at managerial level, the HCCJ, the National Institute of Magistracy (NIM), the SCM, the General Prosecution service and the Presidents of the Courts of Appeal have encouraged awareness and training of judges and prosecutors on the need for consistency, developed online tools and organised regular meetings at all court levels to discuss diverging interpretations, thereby supporting the legal work of the HCCJ, but also complementing it through developing common practice in the application of the procedural codes. CVM reports have highlighted that these management efforts intensified when the new codes entered into force and noted in 2016 signs of a cultural shift in favour of consistency within the judiciary. The availability and transparency of court decisions also contribute to consistency of decisions. While the 2012 report noted that access to court decisions remain an important impediment, with only part of the decisions of the HCCJ published online and the majority of decisions of lower courts not publically available, several steps have been taken to remedy this situation: first the HCCJ fully revamped its website in 2014 and now publishes all decisions (including past decisions) and second, the SCM developed together with the Bar Association a public on-line repository for all judicial decisions (ROLII), that started operating end of 2015. Previous CVM reports have identified a number of obstacles to the consistency of court decisions. Some of these are issues which go beyond the scope of the CVM itself, such as of the quality of legislation and the risks inherent in widespread recourse to instruments such as Government Executive Ordinances. Other factors relate directly to the functioning of the judicial system, such as the quality and delay of motivations of judicial decisions and workload issues. Structural reforms to the administration of justice have been shown to have a direct impact on the effectiveness of justice. Issues like the efficiency of the system, its affordability, and the ease of access are all important factors in an effective justice system. The efficiency of the judicial process had been identified in 2007 as a major problem of the Romanian justice system. Problems such as judges in large courts facing problems in coping with a massive caseload, courts and prosecution offices which lack the critical mass to operate at the right level of professionalism, and shortages in terms of court clerks, offices, court rooms and IT facilities are well known. Structural reforms are a shared responsibility, with the main actors being the Superior Council of Magistracy and the Minister of Justice. In 2012, the CVM report noted that although important efforts had been made to increase the number of magistrates, work to implement structural reforms of the judicial system in the period 2007-2012 had been slow, with little progress in rebalancing of workload between courts, in rationalising the territorial distribution of courts and prosecution offices, and in the transfer of tasks from judges to court clerks. The Functional Review of the judicial system prepared by the World Bank in 2013 provided for the first time a comprehensive overview of the functioning of the system and global recommendations on the reform steps. Another study in 2014 on the optimal volume of work to judges and court clerks complemented this work. On the basis of these studies and CVM recommendations, the judicial management – SCM, Ministry of Justice, Prosecutor General and HCCJ – have defined a comprehensive structural reform plan, Strategy for the Development of the Judiciary 2015-2020, setting out a vision for the judiciary and the key structural reform steps up to 2020, which was adopted by the Government in December 2014. In addition various management tools for monitoring the functioning of the courts and prosecution office and the human resource situation have been developed. The detailed action plan for this Strategy was adopted in April 2016, and its implementation will be supported by EU funds and loans from the World Bank. When the measures will be fully implemented, it should bring major benefits to the users of the justice system, while those working within the system should experience better workload and working conditions. The introduction of new legislation has also aimed at improving efficiency. The 2012 CVM report notes that the Small Reform Law adopted in 2010 helped to accelerate judicial proceedings and strengthen the efficiency of the prosecution. CVM reports in 2015 and 2016 further described how the entry into force of the new procedural codes in 2013 and 2014 helped to improve the effectiveness of the judicial process, although the full impact on efficiency is yet to be concluded. The entry into force of the new codes was also supported by an important commitment of successive governments to support implementation of the Codes with increased resources. Respect and implementation of court decisions is an integral part of an effective judicial system. Problems with the respect and implementation of court decisions by State institutions and public administration have been a consistent theme of CVM reports. Whereas the problems of effective confiscation of criminal assets are being addressed through the development of the National Agency for Managing seized and confiscated assets (ANABI) agency (see Section 5), few steps were taken to address the respect of court decisions by the public administration, although it has also been recognised as a structural deficiency by the European Court of Human Rights (ECtHR) and has a direct impact on the workload of the courts. Integrity, transparency and accountability within the judicial system were another 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 (JI) 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, since 2007 the SCM has taken a number of measures to improve its institutional transparency and has strengthened the objectivity of management decisions within the Council (for example on appointments). In 2014, the CVM report noted that the SCM is the central interface for the justice system towards Romanian citizens and other users of the system, and that it would be in line with the judicial strategy to see the SCM taking a more proactive role in increasing trust in the judicial system. The 2015 report highlighted that the interface which lawyers, businessmen, NGOs and citizens face in their dealings with courts could be improved, while the 2016 CVM report called for the new SCM to take office in 2017 to take clear measures for increased transparency and accountability. Integrity within the judiciary is a particularly important test of the management of the magistracy. In March 2012 the SCM adopted a strategy for integrity within the judiciary, to increase transparency, improve access to the judicial system, enhance ethical and integrity rules, and improve the system of disciplinary liability. In the following years, CVM reports have noted increased steps by the SCM to highlight integrity, with several integrity projects including with international partners. CVM reports have also noted an increase of corruption investigations initiated against magistrates, with a peak of cases in 2013, 2014 and 2015, attributed to an increase in whistleblowing. By the end of 2015, DNA reported that there had been a reduction in the number of complaints and new cases of corruption in the judiciary, and they considered that this was the positive result of a real decrease following a reduced tolerance for corruption within the system. The SCM needs to authorise the search and arrest of magistrates, and has admitted all cases since 2007. Since 2012, it has also applied a policy of suspending magistrates under criminal investigations, a policy which was later confirmed in a formal decision. In 2014, the “Law limiting special pensions for magistrates convicted of corruption” came into force. This provides that magistrates convicted of corruption will not receive the special pension normally enjoyed by the profession. The SCM is also responsible for sanctioning professional misconduct and disciplinary offences by magistrates, notably on the grounds of bad behaviour, incompetence and serious negligence. The investigation of such cases rests with the Judicial Inspection. In the period 2007-2011, various measures had been taken to strengthen the Judicial Inspection and the disciplinary system for magistrates, but the July 2012 report noted that progress in addressing deficiencies of the Judicial Inspection was slow, and that the track record over the five years did not reveal significant change in the number or types of disciplinary sanctions applied to magistrates. CVM recommendations had pointed to the need to consider a more thorough reform of the Judicial Inspection and disciplinary system. In 2012, a new law introduced far reaching changes to the Judicial Inspection, strengthening the disciplinary system through enhancing the autonomy of the Inspection, expanding the range of disciplinary offences and sanctions, and closing loopholes that had undermined the effectiveness of the disciplinary system. From 2013, CVM reports have noted an increase in the number and types of disciplinary actions initiated by the Judicial Inspection, and highlighted its essential role in the transformation of the Romanian Judiciary. The accumulation of cases over the years has now allowed the Judicial Inspection to identify the main causes for disciplinary actions, to better define preventive measures. The reports of the Judicial Inspection are forwarded to the respective SCM sections, who decide on the sanctions. The decisions of the SCM can be appealed before the HCCJ. The 2016 CVM report noted that the chain of decisions seems to have become more predictable and consistent: in comparison to 2013, the SCM reports much less variations between SCM decisions and HCCJ appeals. CVM reports since 2012 have also mentioned that the non-disciplinary inspections (horizontal inspections) of the Judicial Inspection contribute to identifying diverging practices in the administration of justice and structural shortcomings in the management of courts and the management of cases and provide recommendations for improvements. In the Commission decision setting up the CVM in 2006, the lack of trust in applying and recognising judicial decisions taken in Romania in another Member State was identified as an important vulnerability for the judicial cooperation within the EU. Today Romania participates actively in judicial cooperation in civil and criminal matters at EU level. Romania contributes proactively to the activities of European Judicial Network in civil and commercial matters. In criminal matters, Romania completed the transposition of the relevant EU instruments and is making use of them, e.g. in confiscation of criminal assets and the cooperation of Asset Recovery Offices or participation in joint investigation teams (JITs). Over the past ten years the number of both incoming and outgoing requests for mutual legal cooperation has tripled and has risen in complexity. However, some obstacles to the judicial cooperation persist. One concerns decisions in other Member States to execute European Arrest Warrants (EAW) or prisoner transfer decisions which would lead to the person being imprisoned in Romania. The CJEU ruled in spring 2016 that the execution of EAW must be deferred if there is a real risk of inhuman or degrading treatment because of the conditions of detention of the requested person in the issuing State. The underlying reason is the prison conditions in Romania – an issue not itself within the scope of the CVM.

2.2.Judicial independence: recent developments Judicial independence is essential for the rule of law and the justice system to work, so that society can trust that the judiciary fulfils its task in an impartial and professional way. It is guaranteed not only through recognition in law but also through daily practice. Trust is endangered if there is interference in the judicial system, but also if court decisions are ignored. In addition, attacks on judicial institutions and on individual judges and prosecutors can have direct negative effects on the independence and the impartiality of the judiciary. Political interference in senior appointments is recognised as a key risk factor with regard to judicial independence. The consolidation of the independence of the justice system, and how institutions react to threats to independence, is therefore a key element to any assessment of the effectiveness of a judicial system. Checks and balances at work Throughout 2016, the judiciary (represented by the High Court of Cassation and Justice and the Superior Council of the Magistracy) and the Constitutional Court continued to support judicial independence as institutional actors contributing to the balance of power. Increasingly, this role has been shown through a public profile, notably through setting out the positions of the judicial institutions during parliamentary discussions on relevant legislation. As set out above, the Constitutional Court (CCR) has a key role in the rule of law and in the consolidation of an independent justice system. This trend has continued with a number of cases where the CCR has been called upon to assess decisions made in Parliament: In June, the CCR annulled a decision from the Senate to allow a partial renewal of the SCM members. The CCR ruled that the SCM mandate is of collegial nature and all members' mandates should end at the same time. The referral was brought by the Judges' Union. In July, the CCR annulled an amendment to the law on the Status of local elected officials adopted by Parliament in June which would have removed the termination of the mandate of local elected officials (including mayors and presidents of County Councils) sentenced for corruption if the execution of the sentence is suspended. The arguments of the CCR were that being sentenced by final court decision removes the presumption of innocence and therefore the conviction itself causes the loss of integrity which is fundamental for the legitimacy of the mandate. Excluding people for whom the execution of the sentence is suspended from the sanction of termination of the mandate would therefore create a privilege contrary to the constitutional principles of equality before the law. The referral was brought by the President of Romania. In October, the CCR annulled an amendment of the Statute of Deputies and Senators adopted in June in relation to provisions on conflicts of interest in hiring family members. The provisions had stated that prior to the adoption of the statute in 2013 there was no restriction on MPs hiring relatives. The amendments were adopted while a series of ANI cases on conflicts of interests of MPs for hiring relatives were making their way to court. (See section 3.X) Threats to the independence of the judiciary 2016 saw an increase in criticism of magistrates and judicial institutions, in particular targeting the National Anti-Corruption Directorate (DNA). A pattern could be discerned where allegations were launched in public debate through social media, TV channels, or even official pages of State institutions, which could then be multiplied through repetition by other media outlets. Many allegations were being voiced by high officials and public figures (e.g. former president of the state, president of the Senate, deputies, senators) and thus carrying more weight, which conflicts with norms of respect for judicial independence, and risks in terms of undermining public confidence in the judicial system as a whole. The allegations have included claims that the DNA acted abusively, following political orders and infringing the law. An example of personalised attacks came when the DNA Chief Prosecutor was accused of plagiarising her PhD thesis, in spite of the fact that a similar accusation had already been dismissed by a specialised education committee in 2012. This new accusation claiming that members of this committee were influenced in their decision was brought forward by a parliamentarian who was a defendant in several DNA cases. A new academic committee dismissed the accusation in December. The defence of judicial independence by the Superior Council of Magistracy One of the roles of the Superior Council of Magistracy (SCM) is to guarantee the independence of justice. When the SCM considers that the independence of justice may be affected, it notifies the Judicial Inspection on its own initiative. In 2016, the SCM took 20 decisions defending the independence of the justice system and 20 decisions defending the professional reputation, independence and impartiality of magistrates. The large majority of the SCM decisions were reacting to statements against DNA prosecutors. As mentioned in previous reports, few magistrates seek redress in court. Proceedings are long and uncertain – as an example, a case brought by the Chief Prosecutor of DNA against a TV station relating to allegations made in 2014, which was confirmed in a first instance decision in October 2015, is still pending on appeal. The January 2016 CVM report recommended that the new SCM should assess if more could be done to support individual magistrates facing criticism undermining judicial independence. There is little support from the SCM to back up a decision of the SCM on the substance with financial or legal help for magistrates in such situations (there are cases in other Member States where magistrates receive advice and financial support for launching an injunction or a criminal complaint), or to take on a case on its own behalf. The SCM has taken a first step, amending its protocol with the National Union of Romanian Bar Associations, giving the magistrates the possibility to benefit of free legal assistance when seeking redress in courts to defend their professional reputation. The agreement was signed in June 2016, though it is not clear whether magistrates have already made use of this possibility. The SCM seeks to publicise its actions in this area through issuing press releases and has worked on increasing the impact of its decisions defending the independence of the judiciary by issuing more press releases immediately after the SCM plenum sessions, and by proactively notifying journalists directly before the plenum session and as soon as the press release has been published. However, as set out in past CVM reports, there is a difficulty in securing an equivalent level of coverage for the SCM press statements compared to the initial criticisms. Besides the SCM, it is notably rare that any State authority, politician, or media publically condemns such criticism of the justice system or individual magistrates on the grounds that it harms the independence of the justice system, even once established that the claim is untrue. Appointments in leadership positions in the magistracy In line with international standards, CVM reports have underlined the importance of transparent and merit-based selection procedures for the appointment of leading positions. In view of a number of important appointment procedures in 2016 (including the General Prosecutor, the DNA Chief Prosecutor and their deputies, as well as the President of the High Court of Cassation and Justice (HCCJ)) the Commission had recommended in its January 2016 report to "Ensure that clear and robust procedures are in place in time for the appointments to senior positions in the magistracy foreseen in 2016. This would imply that several months before each procedure, the different steps and the criteria which will govern the decisions will be set out. Use a different approach for appointments below the top leadership of the prosecution services, with the newly-appointed Heads playing an important role in selecting their own team. Ensure transparency of all procedures" and further "Subsequently, a more robust and independent system of appointing top prosecutors should be settled in law, with the support of the Venice Commission". This year there were also elections for a new composition of the Superior Council of the Magistracy (SCM). The appointment process for the Prosecutor General started in February 2016, after the resignation of the previous Prosecutor General. The Minister of Justice chose to follow an open procedure similar to that followed in 2015 for the appointment of the Chief Prosecutor of DIICOT. In February, the Minister of Justice published the vacancy together with criteria to be fulfilled by the candidates. In March, The Minister of Justice chose a nomination from amongst four candidates, and communicated the motivation for the selection of the candidate, with integrity an important criteria. In the first phase of the procedure with selection of the candidate by the Minister of Justice, the candidates do not have to present a management plan and the dialogue with the Minister is not public. The SCM interviewed the candidate on the basis of the candidate's management plan and criteria established by the SCM for the appointment of prosecutors, the interview being broadcast, gave a positive opinion on the candidate, and the procedure was finalised through appointment by the President on 28 April 2016.

For the Chief Prosecutor of DNA, the Minister of Justice choose to follow the legal possibility for the incumbent to be reinvested, rather than an open procedure, on the basis of the quality of the work of the DNA Chief Prosecutor in her first mandate., On 25 February, the Minister of Justice publically announced that she would re-appoint Mrs Kovesi and made the proposal to the SCM on 9 March. The procedure in the SCM remains the same: public interview and presentation of management plan. The SCM endorsed the choice and the procedure was finalised in May 2016, with re-appointment by the President of Romania for a period of three years. A similar procedure was applied for the appointment of the Deputy Chief Prosecutors in DNA. The incumbent deputies were re-appointed for a period of three years. Their re-appointment was put forward by the Minister of Justice, with the motivation that the good results of DNA were also a result of good teamwork of DNA management and that both candidates had proven the quality and professionalism of their work in their previous mandate. Consultation with the DNA Chief Prosecutor took place, in line with a CVM report recommendation. A similar approach was taken for the appointment of the Deputy Chief Prosecutor in DIICOT. The appointments of the Deputies of the Prosecutor General proved more complicated. Two deputies were suggested by the Prosecutor General in June, but the Minister of Justice first considered that the appointments should await the appointment of a new Minister in 2017 after the elections. This has the consequence that the two deputies were temporarily delegated in their functions. In the second half of December, the appointment procedure was eventually started mid-December 2016. The Minister of Justice put forward the candidacies of the two deputies delegated by the Prosecutor General. They were interviewed by the SCM on 29 December 2016 and their appointment for a three year mandate was finalised on 30 December 2017. These cases were not able to fulfil the recommendation for "clear and robust procedures …. several months before each procedure, [with] the different steps and the criteria which will govern the decisions … set out". This approach would have set a clear precedent. However, it is also important to note that that none of the appointed candidates raised issues of integrity and professionalism or controversies within the magistracy or civil society. Successive CVM reports have highlighted some inherent weaknesses in the law on appointments of top prosecutors which can lead to doubts on the independence of the candidates. Within Europe, there are different legal traditions with regard to the appointments of the leadership in the Prosecution. However, a 2010 Report from the Venice Commission on the independence of judges and prosecutors puts forward guiding principles which previous CVM reports have already highlighted: 34. It is important that the method of selection of the general prosecutor should be such as to gain the confidence of the public and the respect of the judiciary and the legal profession. Therefore professional, non-political expertise should be involved in the selection process. However, it is reasonable for a Government to wish to have some control over the appointment, because of the importance of the prosecution of crime in the orderly and efficient functioning of the state, and to be unwilling to give some other body, however distinguished, carte blanche in the selection process. It is suggested, therefore, that consideration might be given to the creation of a commission of appointment comprised of persons who would be respected by the public and trusted by the Government. 37. It is important that the Prosecutor General should not be eligible for re-appointment, at least not by either the legislature or the executive. There is a potential risk that a prosecutor who is seeking re-appointment by a political body will behave in such a manner as to obtain the favour of that body or at least to be perceived as doing so. A Prosecutor General should be appointed permanently or for a relatively long period without the possibility of renewal at the end of that period. The period of office should not coincide with Parliament’s term in office. That would ensure the greater stability of the prosecutor and make him or her independent of current political change. To encourage a long-term solution, the Commission recommended that the Minister of Justice and the SCM launch a debate on the issue in order to achieve a more robust and independent system of appointing top prosecutors being settled in law, with the support of the Venice Commission. The 2016 CVM report mentioned that the SCM has proposed to align the legal framework for nominating top prosecutors on the law governing the appointment of the President of the HCCJ, as part of a broader package amending the laws on justice. (See also below) In 2016, the Ministry of Justice created an advisory group for cooperation and consultation on the draft project of amending the laws on justice, composed of representatives of magistrates from the HCCJ, the SCM, the Prosecution, and the National Institute of Magistracy, as well as from magistrates' associations. Consultations were launched for Courts of Appeal and to the Prosecutors’ Offices attached to the Courts of Appeal, as well as meetings at different locations. This was followed by a public consultation. However, the intention of the Minister of Justice to present a consolidated package on the laws of justice to the Government before the elections could not be realised, so the work will need to be continued under the new government and the new SCM. The Venice Commission has not yet been consulted on the draft law. In September 2016, a new President of the HCCJ was appointed (for a mandate of three years). The appointment procedure involving a selection process by the SCM and the appointment by the President of Romania was open and transparent. The process mirrored previous examples and appears well accepted, although there was only one candidate for the post – an existing Vice-President of the HCCJ. A similar process was applied for the appointment of the two Vice-Presidents. The elections for the members of the Superior Council of the Magistracy, including appointing representatives of civil society, took place this year, following the end of the six year term of the Council. The process started with a disagreement: In March 2016, the Romanian Senate had decided that the mandates of the SCM members were individual, so that each shall carry out a full term of six years when filling in a vacant position. Since over half of the members had taken over during the course of the SCM's mandate, this would have meant a minority being renewed. Following a referral to the Constitutional Court by one of the judges associations, the CCR annulled Senate's decision, ruling that the SCM mandate is of collegial nature and all mandates should end at the same time. The election process therefore included all posts. In the organisation of the 2016 elections, shortcomings identified during past elections have been taken into account. The electoral procedure was organised according to a pre-established and public calendar published online and accessible on a dedicated website. The electoral campaign was mainly addressed to the magistrates entitled to vote and the candidates were able to present their programmes within the respective courts. The programme of the candidates was publically accessible on the same 2016 SCM elections website. The procedure started in June and elections were planned for the 27 October and, in case of a second convocation, on the 2nd November 2016. The lists were validated by an SCM plenary decision on the 6th October. On the 22nd November 2016, the SCM Plenum confirmed the legality of the election procedure and validated the list of elected members. After verifications with the National Council in charge of studying the archives of the Securitate, the list was transmitted to the Senate, which validated the new Council end of December. The Senate has not yet appointed the two representatives of civil society. The new SCM will start working in January 2017. There were a few initial controversies with some candidates during the summer but the elected candidates did not appear to raise controversies within civil society. In order to improve and modernise the management of magistrates' careers, the Minister of Justice, on the basis of a SCM proposal, had also proposed further amendments to the package of laws on justice such as increasing the seniority required to be considered for promotion to a higher court. The draft proposal from the Minister of Justice also proposed to change the appointment procedures for the Judicial Inspection, with a shorter mandate and with a greater role for the SCM in the appointment of inspectors. It was not clear how such changes would affect the independence of the Inspection, underlined in previous CVM reports. 2.3.The new Codes Legal systems periodically need to update the Codes that are the basis of the judicial process in civil and criminal law. The demands of social change, developments in the interpretation of fundamental rights, economic change and European law can all call for a modernisation and simplification of legal Codes. This can help to improve the quality of justice, as well as the efficiency of the judicial process in rendering predictable and timely decisions. Such reforms could be expected to be needed relatively rarely, so would normally be based on a strong consensus and be well prepared. They are a sensitive and complex undertaking, and as such are a challenge for government, legislators, the legal system and legal practitioners. Criminal codes: stability of the legal framework The new Criminal Code and Code of Criminal Procedures entered into force two years ago, on 1 February 2014. Overall this major reform is seen as a success by the judiciary, as well as by civil society. In the 2015 CVM report, the Commission recommended to "Finalise the necessary adjustments to the criminal codes as soon as possible, in consultation with the SCM, the HCCJ and the Prosecution. The goal should then be to secure a stable framework which does not need successive amendments." The 2016 CVM report called for the current phase in the reform of Romania's legal codes to be brought to a conclusion in Parliament, passing amendments to provide legal certainty which respect the opinion of the judicial institutions, as presented by the government. However, the question of the stability of the Codes remains. Some amendment of such Codes is inevitable. In consultation with the judiciary, as early as spring 2014 the Government proposed amendments to address identified problems or to respond to Constitutional Court decisions. However, these amendments were not given priority attention in Parliament and were still pending at the time of the 2016 CVM report. In early 2016, the government worked with Parliament to advance the discussions on the amendments to the Codes, but by the end of April, only two sets of amendments tabled as emergency ordinances in 2014, and complemented with amendments from Constitutional Court decisions of 2014 and 2015, had been adopted by the Parliament.

In order to bring coherence to the situation, the government adopted a new emergency ordinance in May 2016. This brought together amendments to implement the CCR rulings (including on the opportunity principle), to transpose EU Directives in the field of criminal law (such as the right to information in criminal proceedings), and included all amendments from the Government pending in Parliament since 2014. The result was to provide legal stability, even though the emergency ordinance still needs to be approved by Parliament. At the same time, referrals to the Constitutional Court concerning the provisions of the Criminal Codes continued (the Constitutional Court took more than 30 decisions since 2014 annulling provisions of the criminal Codes). In the course of 2016, the CCR took 12 decisions concerning the provisions of the new Criminal Code and Code of Criminal Procedures. A majority of these decisions aimed at reinforcing respect for fair trials and rights of the parties in line with ECtHR case-law. The Government sought to apply the CCR rulings through new emergency ordinances. Important examples included the CCR ruling to maintain the validity of the crime of abuse of office, in line with the UN anti-corruption convention. Some exceptions of unconstitutionality had a major impact on the work of the judiciary. In February 2016, the CCR invalidated the principle of opportunity used by prosecutors to drop charges in the public interest (more than 130,000 cases had been resolved in this way in 2015). Another key decision taken the same month concerned restricting the possibility to carry out technical surveillance measures in criminal investigations by authorities outside the prosecution or police services. Prior to the CCR decision such surveillance measures based on a prosecutor's order and approved by a court were technically carried out by the intelligence services. Since the CCR decision would be immediately applicable, the latter risked creating a legal vacuum in terms of gathering evidence and prompted the Government to address the issue urgently by creating a new prosecution capacity through an emergency ordinance in March 2016. As an emergency ordinance, the new provisions entered into effect immediately, however the law needs to be adopted in Parliament. Further CCR decisions, notably concerning the competence of the HCCJ to judge extraordinary appeals, have required new amendments and a new emergency ordinance in October. Whilst by the end of 2016, there had been some progress through the parliamentary process, with two ordinances having passed one of the chambers, the overall process remains slow. At the end of the legislatures, all ordinances was still pending in Parliament. The 2016 CVM report also referred to the fact that a number of additional amendments to the Criminal code and Code for Criminal Procedures had been put forward by MPs, including some which triggered public debate and negative reactions from the judicial authorities, on the grounds that they would harm the fight against corruption and reduce the capacity of the prosecution and judges to investigate or sentence corruption crimes. Some of these amendments were put forward by MPs themselves under investigation or convicted for corruption. By the end of 2016, none of these amendments has been adopted, though some remain on the table of Parliament. The Minister of Justice modified the law allowing a reduction of sentence for intellectual work undertaken in prison. A number of high-profile figures convicted for corruption have benefited from this law, amid accusations of plagiarism and ghost-writing of the works they produced. Respect of fair trial rights Respect of fair trial rights in line with ECHR case law is an essential element of the criminal codes and of criminal judicial proceedings. Trust in the respect of fair trial rights in another country are the basis for judicial cooperation in criminal matters. As mentioned in the 2016 CVM report, respect of fair trial rights in criminal proceedings has been an important issue of public debate, in particular in cases relating to the activity of the prosecution and the courts in corruption cases. Respect of fair trial rights has also been an important theme in the rulings of the CCR and the HCCJ and in the statements of the SCM, the DNA and the judiciary in general. It is an important theme of the new Codes – introducing the "rights and liberty" judge who will examine and control the demands of the prosecution, in terms of search and arrests. Since the introduction of the new criminal codes, the CCR has ruled on several "open" issues or has annulled provisions, in view of re-enforcing respect for fair trials in line with ECHR case law: notably electronic surveillance measures to be enforced solely by law enforcement bodies, and safeguards when applying the opportunity principle. In all these cases, the judiciary has been quick to adapt and the Minister of Justice has reacted swiftly with legislative amendments. The Commission CVM team visited the European Court of human Rights (ECtHR) and the Council of Europe Department for the Execution of judgements in June 2016, and was informed that so far applications to the ECtHR alleging a violation of fair trial rights by the prosecution services (in corruption cases) have not been admitted, that there was an improvement of the quality of the judgements of the Romanian High Court and the judicial system overall and that the Grand chamber ruled inadmissible a claim that the Romanian judicial system was dysfunctional. Regarding the type of cases, the CVM team was informed that the type of cases brought to the court has shifted. There are less new cases on the excessive length of civil proceedings or on ineffective criminal investigations, while the number of cases in relation with prison conditions has steadily increased. The issue of respect of fair trial rights is often used as an argument in public debates to criticise the judiciary and advocate for changes in the (corruption) laws. For example, in autumn, an ECHR case against Romania regarding proceedings in a corruption case was cited in public debate as an example of abuse by the HCCJ. However, the case referred to an old procedural issue in the law, for which Romania had already been condemned in other cases several years ago and for which a legal solution has already been provided while HCCJ had adapted its practice even before the adoption of the new law. Civil codes: implementing the final provisions The new Civil Code entered into force on 1 October 2011. The new Code of Civil Procedure entered into force on 15 February 2013, with some provisions to become applicable on 1 of January 2016. The transition towards the application of new Code of Civil Procedure is now coming to an end with the large majority of cases in courts now falling under the new code, but there is one major exception. The provisions which were to have entered into application in January 2016 were postponed to January 2017. These provisions refer to solving cases in council chamber, preparing files in appeal phase by the court that pronounced the ruling that is appealed, and changing the value ceiling for jurisdiction of cases. They therefore imply a logistical investment not only in terms of personnel but also in terms of buildings. Clarity on the extent of changes required and how to effect these changes has been elusive, so in January 2016 the Commission recommended that the government and the SCM should set up a clear plan to ensure that the deadline for the implementation of the remaining provisions of the Code of Civil Procedures could be respected. This required an agreement between the SCM and the Government on the needs of the courts in terms of council rooms, though the HCCJ also recommended that the opportunity of the delay should also be used to conclude ongoing legal discussion on some of the remaining provisions. The realisation that the situation would not be resolved in time for the January 2017 deadline led to a decision in December 2016 to postpone the application of the remaining provisions of the Code for Civil Procedures for another two years, until 1 January 2019. However, work is also now under way on a needs assessment, to be concluded by 30 June 2017, so that works can be started immediately and concluded by the end of 2018. 2.4.Consistency of jurisprudence and predictability of the judicial process The consistency of jurisprudence has been used as a term to describe the need for consistent judicial decisions on similar cases taken by different courts and judges. This is important for the quality and predictability of the judicial process and the accountability of the judicial system towards the society it serves. Inconsistency in judicial decisions also adversely affects public perceptions of the judicial system. If the same judicial system, using the same legal instruments, results in very different decisions in similar cases, this causes uncertainty, and can even fuel suspicions of corruption. Different factors contribute to the consistency of court decisions: legal mechanisms to resolve in consistencies, the organisation of the system in terms of management and procedures; the availability and transparency of court decisions; and the awareness and training of judges and prosecutors on the need for consistency. Broader issues of the quality of public administration and quality of legislation also play a role. In line with its constitutional role, the High Court of Cassation and Justice (HCCJ) has the main responsibility in the consistency of jurisprudence and interpretation of the laws. An increasing part of the HCCJ’s work is dedicated to enforcing consistent interpretation and practice. The HCCJ fulfils this role through defined legal mechanisms and meetings with lower level courts. Legal consistency mechanisms As stated above, the HCCJ has two legal mechanisms at its disposal for consistency of jurisprudence and providing a consistent interpretation: the preliminary ruling and the appeal in the interest of the law. The "preliminary ruling procedure" allows for a court ruling in final instance to address questions to the High Court and request an interpretative ruling that is binding both for the court in question and for future cases. Appeals in the interest of the law can be used to resolve the interpretation of the law when facing inconsistent judgements. The number of requests for preliminary rulings is steady. In criminal cases, there were 25 preliminary questions lodged and 24 settled in 2016, compared with 35 questions lodged and 33 settled in 2015. In civil matters, including administrative and tax matters, there were 82 questions lodged and 56 settled in 2016, compared with 51 questions lodged and 47 settled in 2014. This shows that the mechanisms are well established and used by judges in lower courts. The other unification mechanism, appeals in the interest of the law, continues to provide a substantial contribution to unification. In 2016, 20 appeals were lodged and 15 were settled in civil matters; 8 appeals were lodged and 6 were settled in criminal matters.

Management action for consistency Regular meetings within court sections, with the Courts of Appeal, or between Courts of appeals, the NIM and the HCCJ take place regularly to discuss issues of diverging interpretations and practice. The January 2016 report also noted signs of a cultural shift in favour of consistency. The consistency of court decisions and judicial practice is also part of the training of judges and prosecutors. In the prosecution, a special service for guidance and analysis also issues guidelines for unifying practice at prosecutorial level. The SCM has set up an online wiki for unifying jurisprudence, where courts can upload the results of its internal discussions, and a forum where judges throughout the country can discuss cases of non-unitary practice. A common interpretation can also emerge from these discussions. Through its thematic inspections in courts and prosecutors office, the Judicial Inspection also contributes to unification by making relevant recommendations when there are diverging practices or procedures. Publication of jurisprudence The availability of online open and searchable access to all court decisions remains one of the important means for magistrates and all parties to refer to similar cases and decisions. The HCCJ continues to publish its decisions on its website. It publishes summaries of key decisions as well as the full texts of all decisions. The RoLII project (Romanian Institute for legal information) to publish all court decisions online became operational last year – in the first nine months of 2016, the system was accessed over 115,000 times, by 39,000 users. While some judges reported that they use RoLII regularly and successfully, in other cases there seemed to be a need for the tool to be further promoted, including to legal professions and the public administration. Obstacles to the consistency of jurisprudence Previous CVM reports have identified a number of obstacles to the consistency of jurisprudence. Some of these are broader issues, such as of the quality of legislation, such as the risks inherent in widespread recourse to instruments such as executive ordinances. , A planned reform of public administration, with the support of EU funds, could help to promote a consistent approach by public administration towards the judicial system. Whilst every case has its own specificities, the motivation of the decision can be used to explain cases where there is an apparent divergence from precedents or jurisprudence from higher courts. This points to the importance of training in drafting motivations, as well as the need for sufficient time – judges, particularly in lower level courts, have commented to the Commission that they do not have sufficient time to write their decisions to good standards within the legal deadlines. This issue of efficiency is further developed below. In addition, judicial decisions are pronounced while motivation of the decisions follows one month later (when it is not delayed). This time discrepancy between decision and motivation can also impact negatively on the coherence and the quality of decisions, and can fuel speculation about the reasons for the decision and distrust or criticism of the judicial institutions. The SCM reported that a pilot project to align judicial decisions and motivations is ongoing. The importance of the uniform application of the law and the uniform implementation of court decisions by the public administration has also been noted as a factor for consistency of court decisions. 2.5.Structural reforms Structural reforms to the administration of justice have been shown to have a direct impact on the effectiveness of justice. Issues like the efficiency of the system, its independence, its affordability, and the ease of access are all important factors in an effective justice system. This is true for citizens, but also for businesses, and justice is a key element in a successful business climate. The Strategic framework An action plan for the Strategy for the Development of the Judiciary 2015-2020, with detailed planning of actions and responsible institutions and including a detailed budget and sources of funding, was adopted by the Government in April 2016. The financial envelope for the action plan is some EUR 509 million for four years (2016-2020). It will be funded through the national budget (54%), EU funds and the World Bank. The full implementation of the action plan will be essential for a sustainable improvement of the administration of justice and of the trust in the judiciary. In 2016, important measures under the action plan were implemented. In September, the Strategic Management Council was established. The members are the Minister of Justice, the President of the SCM, the President of the HCCJ, and the Prosecutor General. The Council is responsible for setting up the general priorities of the judicial system, including the development and allocation of human and material resources, and will follow the implementation of the measures of the action plan. The expectation is that the Strategic Management Council will help address issues for which several institutions share part of the responsibility: budget, personnel, court clerks, buildings, and IT systems. Also worth mentioning are the actions taken by the SCM to strengthen integrity within the judiciary. Resources The Minister of Justice has continued to support the reform of the justice system through securing budget for the justice system and providing additional posts, in total 630 additional positions: 342 positions of judges, and 168 positions of clerk for courts; 40 positions for DNA, 40 positions for DIICOT and 40 for the Public Ministry, in order to be able to develop in house capacity for electronic surveillance measures. The total Ministry of Justice budget for 2016 was of the order of EUR 693 million. Management tools, efficiency and quality of the judicial process The SCM has continued the development of tools for monitoring and managing the activities of the courts and for managing various administrative and human resource activities. The STATIS system, monitoring the activity of the courts in handling cases, has been further extended and refined. The SCM publishes every six months the results of aggregated performance indicators, highlighting the strong points and weaker points, and the measures to remedy those. An analysis of the best performing courts is also made to highlight good examples and best practices. Cumulative analysis over several years will also provide an important policy tool for human resource management and justice administration policies in general. The e-filing in courts and prosecution offices has also been worked on. In particular, a mechanism was created to deliver the indictments and the credit for guilty pleas from the prosecution office to the law courts through the electronic case management system (ECRIS). The SCM, the NIM and the National School of Clerks are working on standardised electronic models of decisions both in civil and criminal matters. Balancing the workload The problem of workload imbalances is a long-standing CVM issue. There is joint working group looking at practical solutions such as changing territorial jurisdiction. For example, this year the SCM proposed to alter the geographical area covered by some courts. The issue of small prosecutor's offices is also a major concern for the Prosecutor General. One problem which has an impact on the workload of courts is the issue of repetitive cases, mostly cases raised by citizens against the public administration, which seem to create an unnecessary burden. This has been raised in previous CVM reports and in the context of consistency of jurisprudence and implementation of court decisions, but it also has consequences in terms of efficiency. Identifying equivalent cases and relevant legal decisions can also be a support role for clerks with legal training; however, the draft law that would modernise the status of clerks and create a new category of clerks – judicial clerks who could take over administrative tasks from judges – remains before Parliament. The Minister of Justice has proposed to relaunch this debate. In parallel, the SCM has also finalised a project on the work of clerks in tandem with The Netherlands which has resulted in a series of recommendations, which the SCM is intending to apply in the Romanian courts. Enforcement of court decisions by public administration

"The right to prompt implementation of a final and binding judicial decision is an integral part of the “right to a court" provided by Article 6.1 of the European Convention of Human Rights. Otherwise, the provisions of Article 6 § 1 would be deprived of all useful effect. This is of even greater importance in the context of administrative proceedings. The effective protection of the litigant and the restoration of legality therefore presuppose an obligation on the administrative authorities’ part to comply with the judgment." "The refusal of an authority to take account of a ruling given by a higher court – leading potentially to a series of judgments in the context of the same set of proceedings, repeatedly setting aside the decisions given – is also contrary to Article 6 § 1." Problems of enforcement of court decisions by public administration or State institutions have been repeatedly flagged in CVM reports and recommendations, though statistics on effective enforcement are not available. The reports have mentioned different issues: Reluctance of Parliament or other public authorities to enforce the legal sanction following final and irrevocable decisions in ANI cases. Delay in execution or no execution at all of final court decisions against the State, such as reimbursement of taxes, pension rights or stopping works when a court has ruled that a building permit is illegal. Reluctance of public authorities to apply the result of a final court decision in one case to similar cases (including reluctance to apply the binding interpretations of the High Court of Cassation and Justice). As a result, courts have to deal with repetitive cases. Difficulties or reluctance of the Agency for Fiscal Administration (ANAF) to enforce confiscation decisions in criminal cases. Estimates from the Ministry of Justice and the prosecution of effective recovery by the State have put the proportion as low as 5 to 10 % of the amounts confiscated in the final court decisions. There are some signs of progress on the first and last points, through for example intensified cooperation between the National Integrity Agency and other public authorities, or through the new Asset Recovery Agency. On the other two little progress was reported in discussions with the Ministry of Justice. Relationship with the Bar Discussions between Commission services and the National Bar of Romania and the Bar of Bucharest report an improvement in the institutional relations with the SCM, the courts and the Ministry of Justice, but also note that the day to day relations in court can remain difficult. Overall there does not seem to be a strong mutual desire to improve the relationship. A proposed amendment to the Law on the organisation of the legal profession has also increased tensions: this proposed to give immunity to lawyers, which the government considered would go beyond ECHR case-law and could serve as an obstacle to the prosecution of corruption. The draft law was approved by the Parliament in October, but was challenged before the Constitutional Court by the government and the President. Integrity within the judiciary Integrity within the judiciary is a particularly important test of the management of the magistracy, with consequences for the reputation of justice in general. In 2016, DNA indicted 7 judges, and 8 prosecutors. The Courts ruled final conviction decisions against 9 judges. DNA confirmed the trend of last year that there had now been a decrease in the number of complaints and new cases of corruption in the judiciary. The SCM approved preventive measures regarding magistrates, such as pre-trial detention, search and custody –the numbers show a slight decrease on 2015 – and suspended 14 judges and 16 prosecutors from duty. In this respect, studies point to the importance that the judicial hierarchy is attentive to any risk of integrity for judges and prosecutors, and that magistrates receive proper guidance with regard to the rules on conflict of interest or incompatibilities. Ideally, such measures might also extend to judicial assistants and clerks. The fourth evaluation of GRECO also includes recommendations on proper guidance for judges and prosecutors and increased responsiveness from the SCM, the Judicial Inspection and judicial management in general to the risks of integrity within the judicial system. A project completed last year recommended to appoint ethics counsellors in courts for practical advice to magistrates. In May 2016, SCM established ethics counsellors for Courts of appeal and Tribunals and for the prosecution offices, including the National Anti-Corruption Directorate and Department for Investigation of Organised Crime and terrorism, later extended to the SCM itself, the National Institute of Magistracy, the National School of Clerks and the Judicial Inspection. These are also objectives of the national Anti-corruption Strategy for the judiciary. However, the decision sparked resistance within the judiciary as the ethics counsellor was perceived as a controller rather than an advisor. One of the judges' unions challenged the decision in court. The decision is now suspended until final settlement. Every year, as part of their assets, incompatibilities or interests declarations, judges also have to declare that they do not have any activity for the Romanian Intelligence Services (SRI). These declarations are verified by the CSAT (Superior Council for Country Defence), ex-officio or upon a notification introduced by the CSM. In May 2015, following a request from the Romanian National Union of Judges (UNJR), CSM formally seized the CSAT to verify the declarations as allegations were aired as regards the existence of undercover SRI agents within the magistracy. The verifications recently finalised by the CSAT in January 2016 sparked controversy with respect to the procedure followed, the UNJR requesting a follow-up. Disciplinary action The SCM is responsible for sanctioning professional misconduct and disciplinary offences of magistrates, notably bad behaviour, incompetence and serious negligence. The investigation of such cases rests with the Judicial Inspection. Overall there have been fewer disciplinary actions and sanctions in 2016, compared to 2015. In 2016, from 6304 referrals on disciplinary offences registered, the Judicial Inspection took forward 52 disciplinary actions. The reports of the Judicial Inspection are forwarded to the respective SCM sections, who issued 28 decisions concerning judges (accepting 20 cases and rejecting 8) and 10 decisions regarding prosecutors (with 5 acceptances, 3 partially admitted and 2 rejections). The SCM applied 20 sanctions to judges and 8 to prosecutors. The sanctions applied are similar to last year (warning, decrease of monthly salary, suspension from office, exclusion from magistracy). 3.Integrity framework and the National Integrity Agency 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. Romania now has a comprehensive framework for integrity for public officials, and an independent institution to help the application of these rules and to apply sanctions (which can be challenged in court). The integrity framework defines both situations of incompatibility with holding official positions, and situations of administrative conflict of interest. An important aspect of this work is seeking to ensure that conflicts of interest can be avoided in the first place, so it also contributes to corruption prevention. Since the last CVM report, the National Integrity Agency (ANI) continued to deal with a high number of cases. It initiated a substantial number of new cases, which as in previous years illustrated continued integrity concerns in particular with respect to local politicians. The legal framework on incompatibilities and the implementation of ANI reports, even when confirmed by court decisions, continued to be questioned. Ahead of local and general elections in 2016, ANI developed stronger prevention activities to promote respect of the integrity requirements for all candidates.

In the 2016 CVM report, the recommendations on integrity covered pursuing efforts towards consistency of jurisprudence of integrity decisions; ensuring that court decisions requiring the suspension from office of parliamentarians are automatically applied by Parliament; implementing the ex-ante check of conflict of interests in public procurement through the Prevent programme; taking steps to ensure the respect of the rules on integrity in the organisation of elections; and more generally put an emphasis on upstream prevention of incompatibility and conflict of interest and on improving public acceptance and effective implementation of incompatibility rules. 3.1.Overview of developments under the CVM The law establishing the National Integrity Agency (ANI) was adopted in 2007, and strengthened by a Government Emergency Ordinance the same year. ANI was established as an independent administrative authority competent for verifying assets, incompatibilities and conflicts of interests of public and elected officials. However, in spring 2010 central elements of ANI's legal framework were declared unconstitutional by the Constitutional Court and in the absence of a legal framework, ANI ceased working for several months. New legislation was adopted, and law 176/2010 came into force in September 2010. Law 176/2010 now underpins ANI’s activities. It was also in 2010 that the Wealth Investigation Commissions were established to serve as a pre-judicial filter in unjustified wealth cases over EUR 10,000. The adoption in 2010 of the ANI law 176/2010 was accompanied by difficult discussions in Parliament, covering issues beyond amendments required to comply with the Constitutional Court decision. This was symptomatic of a general questioning of ANI's legitimacy, through periodic proposals in Parliament to re-open the ANI law. These challenges became less frequent after 2013. However, the integrity legal framework itself, the set of laws defining the situations of conflicts of interests and incompatibilities for civil servants and elected or appointed officials, has continued to be challenged, resulting in some changes to remove activities from the scope of incompatibilities or conflicts of interest. In 2014, the Constitutional Court was called upon to rule on the question as to whether the general three-year election ban under the ANI law – which applies after someone is found incompatible, in conflict of interest or with undeclared assets – applied to all elected functions, and not just the function held when the transgression took place. The Constitutional Court upheld this position. However, this issue has been raised again in Parliament, though amendments to restrict the general election ban to the same function have not been adopted. The National Integrity Council (NIC) provides political oversight for ANI, guaranteeing its independence and monitoring its performance. Its members are appointed by the Senate from political parties, representatives of local government and civil society, representing key institutions and sectors covered by ANI's activities. Until the end of 2011, the relationship between the NIC and ANI was difficult and the Commission expressed concerns about whether the NIC was effectively exercising its role. However, in recent years, CVM reports have noted the active role of the NIC in supporting ANI's ability to perform its tasks effectively. This has included arguing the case to maintain ANI's legal framework and calling for sufficient resources for ANI, including in Parliament, as well as taking a public stand when public institutions did not implement the sanctions required under the law (notably when ANI reports have been confirmed in court) and when ANI's leadership has been subject to political and media attack. The NIC also successfully organised competitions for appointments of the ANI leadership. The track record of ANI in investigating unjustified wealth, incompatibilities and administrative conflicts of interest had a slow start, and was interrupted by the legal vacuum in 2010. However, the scale of its work then gradually increased, following several actions using targeted risk assessments and prioritisation on the most serious cases. Between 2010 and 2016, ANI finalised 12,297 files, of which 2,167 files had specific findings. This track record significantly increased from 2013 on, and has remained stable since then, in spite of the management upheaval caused by the resignation of the ANI President following the start of a criminal investigation into activity which preceded his term at the Agency. In the same period, cooperation with judicial and administrative authorities significantly improved, so that the large majority of notifications to ANI are now external notifications. Each year the reports of ANI concern officials and politicians from all ranks and parties. A large majority of ANI reports are challenged in court, but the confirmation rate of ANI's reports by the courts is consistently above 80%. ANI communicates its activity by publishing on its web page press releases informing the public about its findings, and about definitive and irrevocable decisions. A major challenge in integrity cases is the fact that situations of administrative conflicts of interest or incompatibilities are defined in many different laws, so that the whole legal setting is complicated, and can be ambiguous. There are many examples where this has led to decisions at first instance which were overturned on appeal. Already in 2012, the CVM report recommended that the Government and ANI should work together to develop and propose legislation to improve the integrity framework. This avenue has however not been pursued, and at different times both the Ministry of Justice and ANI have cited the reason as concern that parliamentary debates on a consolidated draft law would end up diluting the integrity framework (preferring to rely on jurisprudence to unify divergent interpretations). This concern has been reinforced by a number of amendments with this effect which have passed at least one chamber of parliament, on some occasions without debate or public consultation. Both ANI and the Minister of Justice have opposed a number of such amendments, others have been challenged by the President of Romania and referred to the Constitutional Court. Changes to the law which were not agreed with ANI and the Government have however taken place (see footnote 101). Since the early days of ANI, CVM reports have noted resistance to the implementation of ANI reports, even when confirmed by a court decision, and reluctance of the responsible institutions and authorities to apply the legal sanctions, which normally consist in either dismissal of public function or administrative fines. In 2012, the CVM report noted that "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." Since 2014, ANI has monitored more closely the follow-up of its reports and has issued administrative sanctions when the authorities have failed to act. , Successive CVM reports have highlighted that the implementation of ANI reports concerning Members of Parliament, even when confirmed by court decision, have been questioned. A Constitutional Court decision on this issue, and the new Statute of Senators and Deputies adopted in 2013 – which clarified the procedure to be followed by the respective chamber in case of incompatibilities or conflicts of interest – have not succeeded in ending cases where the law has not been implemented or in accelerating the application of sanctions. , The objective of the rules on integrity is preventive: avoiding situations of conflicts of interests and lowering the risk for corruption in the first place. Starting from 2014, ANI has developed prevention activities in order to clarify the formalities to complete and submit asset and interest disclosures, as well as to explain the legal regime for incompatibilities and conflicts of interests. ANI's prevention activity was further developed and boosted in preparation of local and general elections in 2016. In addition, ANI developed a system of ex-ante detection of potential conflicts of interests in public procurement (PREVENT) to preclude awarding contracts when possible conflicts of interests are detected and remedial measures are not implemented. This will complement the ex-ante verifications of the National Agency for Public Procurement (ANAP). The law establishing PREVENT was passed by Parliament in October 2016. The track record of ANI is also attested by the fact that it has been the subject of increasing attention from other countries interested in developing their own integrity framework. 3.2.The National Integrity Agency in 2016 Institutional capacity The institutional capacity of ANI continues to be consolidated. By the end of 2016, ANI employed 111 persons, compared with 104 in 2015. There are 48 integrity inspectors, with an average caseload of 81 files. The position of Vice-President is still vacant as the procedure was delayed because of internal logistics within the National Integrity Council, but the competition has now been launched and should be finalised in February 2017. ANI continues to report good cooperation with institutions dealing directly with its files: the Wealth Investigation Commissions, the High Court of Cassation and Justice (HCCJ), and the General Prosecution. ANI was also closely associated with the Ministry of Justice in the development of the National Anti-Corruption Strategy. ANI has also reported that there has been less external pressure on the Agency and its personnel. Track record – conflict of interest, unjustified wealth, incompatibility In 2016, ANI's track record was stable compared to previous years. ANI finalised 1635 cases and found 263 cases of incompatibilities, 123 cases of administrative conflicts of interest, 51 cases of criminal conflicts of interest, and 25 cases of significant differences between income and assets. The cases include 94 mayors, 137 local counsellors, 89 deputy mayors and 5 Members of Parliament. ANI notified the prosecution of 19 cases where there was a sufficient suspicion of a criminal offence. The Agency has continued its communication policy of publishing all definitive and irrevocable decisions. A high proportion of ANI decisions are challenged in court, but the confirmation rate of ANI decisions in court remains above 80%. In 2016, 216 cases have remained definitive and irrevocable. Successive CVM reports have pointed to the issue of the length of court proceedings in ANI cases, as sanctions can only be applied when the decision is final and irrevocable. Long delays (sometimes over two years) risk to defeat the prevention purpose of the integrity laws. This situation has been attributed to the heavy workload of administrative sections, notably at the HCCJ. The efforts of the Administrative Section in the HCCJ to accelerate ANIs cases seem to have borne fruit, as there has been a significant increase in the number of final decisions in incompatibility and administrative conflict of interest in 2016.

ANI reports an overall improvement in the implementation of final court decisions regarding unjustified assets or conflict of interests and incompatibilities, and attributes this to its policy of monitoring closely all final cases, notifying the relevant disciplinary authority and imposing fines if the authority does not apply the legal sanctions. In incompatibility cases, by 2015, 82 % of persons in incompatibility had their mandate terminated, or resigned/were dismissed from their function. By the end of 2016, this figure had increased to 86% of persons in incompatibility, while at the same time the number of final decisions has significantly increased. It seems thus that the sanction was applied for nearly all new final cases in 2016, which is an important improvement with regard to previous years. Although the 2012 CVM report had put forward mixed conclusions on the Wealth Investigation Commission (WIC), the 2014 CVM report noted a normalisation of the procedures between ANI and the WIC. By end of 2016, ANI reported that more than EUR 26 million had been identified in all cases of unjustified wealth, with EUR 3 million already transferred to the State budget and a further EUR 430,000 pending confiscation in relation with the 16 court cases won so far. The number of cases still before the WIC is nevertheless high and the overall procedure is slow, with more than half of the cases notified by ANI since 2010 still pending. Judges in the WIC would like to modernise the law and make it more efficient, for example by creating more committees to analyse the cases (who also have other tasks). Regarding criminal conflicts of interest, ANI notified 51 cases to the General Prosecution in 2016, which continues to allocate theses case to experienced prosecutors in the Courts of Appeal. In 2016, prosecution services solved more cases than in previous years: 378 cases of conflicts of interests. 48 cases were sent to court, of which 13 were notified by ANI. A ten year summary provided by the General Prosecution services shows a stable track record of indictments since 2013, in contrast to only a few cases brought to courts by the Public Ministry in the period 2007–2012. The number of cases solved by the Public Ministry has also risen after 2012, but so has the number of notifications, so that there is now a high number of pending cases. The guidance service of the General Prosecutor's Office regularly draws up analyses of the typology of the conflicts of interest cases sent to trial. These analyses help the prosecution to identify priority investigation areas. 3.3.Legal Framework and jurisprudence on incompatibilities The preventative impact of the integrity framework relies on the law being clear to everyone, and on predictable sanctions for incompatibilities and conflict of interest. In the past, there have been clear examples of inconsistent court decisions undermining its effectiveness. In the 2016 CVM report, the Commission recommended that efforts towards consistency of jurisprudence of integrity decisions should be pursued, with consolidated case-law to be made available to lower courts. The High Court of Cassation and Justice (HCCJ) plays a key role in setting jurisprudence in incompatibility cases, with hundreds of decisions on incompatibility and conflict of interests cases since 2008. The work of the Administrative Section of the HCCJ has been fed into a table of ANI case-law, organised by recurring types of incompatibilities and providing the solutions applied in those cases. This case-law table is updated every six months and is made available on the HCCJ website. Within the Section itself, when interpretation issues are identified, a discussion takes place and the interpretation is settled by the view of the majority. Lower courts report that they constantly refer to the uniform practice in the HCCJ on ANI cases and recognise the usefulness of their access to the case-law. ANI also makes the case-law available on its website and promotes it for prevention purposes. In 2016, amendments to the integrity framework continued to be tabled in Parliament without prior debate on the public interest underlying the changes. In October 2016, the Parliament adopted a new amendment to law 161/2003, eliminating incompatibilities for mayors or local elected officials to sit in boards of commercial companies that provide utility services. The law has been challenged at the Constitutional Court. Other initiatives pending in Parliament would eliminate common incompatibility situations or restrict the three-year election ban. 3.4.Integrity and the Romanian Parliament At the same time, problems continue in the implementation of the law in respect of ANI's decisions, even when confirmed by a clear court decision. The automaticity with which Parliament implements final court judgments which have upheld decisions of the National Integrity Agency (ANI) is an issue that has been regularly raised in previous CVM reports. Article 7 of the Statute of Senators and Deputies regulates how the Parliament should proceed when a member has been found incompatible. Although the termination of office is automatic on the date the decision of incompatibility becomes final and irrevocable, other steps are needed to put this into effect. The President of the Chamber has to take note of the termination of the mandate of the Deputy or the Senator, and puts the question to the vote of the plenary session of the Chamber where the place of the Deputy or Senator shall become vacant. In 2016 four incompatibility cases of Deputies became final and irrevocable. In three cases out of four, the Chamber of Deputies revoked the mandate. In one case, this process took more than six months, though one case was concluded in less than a month. In one case, the Deputy was still a Member of Parliament when the 2012-2016 legislatures ended. However, his candidacy to the 2016 parliamentary elections was rejected by the Central Electoral Bureau as subject to a three-year election ban (see below). One of the cases reported in the January 2016 CVM report, which was considered final by ANI as it had not been challenged in court within the legal deadlines, was eventually overturned in the Court of Appeal, which admitted the case in April 2016. The Deputy was reinstated in the Chamber of Deputies (in the previous legislatures). ANI appealed the decision and the case is now pending at the HCCJ. In 2016, four cases of administrative conflict of interest of Deputies became final and irrevocable (though one case returned to court). Again decisions took several months, but in all four cases, the Parliament applied the disciplinary sanction – although in one case, it subsequently reversed its decision and the disciplinary sanction of temporary salary decrease was not applied. On 21 December ANI notified the new Parliament on two cases concerning elected MPs. 3.5.Ex ante checks and prevention activities The electronic system PREVENT aims at automatically detecting potential situations of conflict of interests in public procurement, before the selection and contract award procedure. It will apply to all procedures, irrespective of the sources of funding. An essential element of PREVENT is that the contracting authorities are obliged to effectively fill in the integrity form, and failure to fill in the required information will automatically lead to the suspension of the procurement procedure. If the system detects a potential situation of conflict of interests, it issues a warning to the contracting authority so that corrective measures can be taken before awarding the contract. The first step is an electronic check alone, but in a second step a more thorough verification of how the conflict of interest situation has been resolved can be triggered by the Agency. The system is designed to detect potential conflicts of interest as defined currently in the Romanian legislation, i.e. the existence of kinship to the third grade (parents, children, siblings), but it could potentially be extended to also cover third parties, consultants or sub-contractors. According to ANI, a very large share of situations of conflicts of interest (85 to 90%) involve concluding public contracts with companies linked to or owned by family members of local officials. The draft law establishing PREVENT was proposed by the Government in September 2015 and was adopted by Parliament and promulgated in October 2016. The system will apply to all public procurement procedures run via the Electronic Public Procurement System (SEAP), involving both EU funds and national funds. The priority for ANI is now to make the system operational. For this it is collaborating with the National Agency for Public Procurement (ANAP), the Ministry of Interior (responsible for population databases) and with the Ministry of Justice. ANI and ANAP will still need to develop solutions to cover all conflict of interest as defined by the new public procurement laws, as the new definition is broader than the one currently covered by ANI. Through the National Integrity Council, ANI could also develop collaboration with the Union of Notaries. It is planned that the system will become operational in summer 2017. ANI will organise training for the new system, complementing on the public procurement trainings planned by ANAP. While PREVENT will be compulsory for all public procurement procedures, it will not be able detect all potential conflicts of interests. Therefore, the absence of an integrity alert does not exclude the responsibility and the active obligation of the contracting authorities to identify conflicts of interests, nor relieve the control bodies from further ex-ante and ex-post verifications. Throughout 2016, ANI continued to expand its prevention activities. One important focus was on the elections (see below) but other activities are also being set up. One of them is a post-graduate anti-corruption and integrity programme “Public Integrity and Anti-corruption Public Policies” given by ANI at Babes-Bolyai University in Cluj-Napoca. The main objective of the programme is to train public servants in city halls, county councils and parliamentary offices on conflict of interests and incompatibilities, as well on filling in assets and interests' disclosures, assets evaluation, and the effectiveness of strategies and public policies in public integrity. In September 2016, ANI also launched an 18 month project with the Institute for Public Policies on "Mapping Risk Areas in Conflict of Interest in Romania", with a view to strengthening the administrative capacity of the integrity system for early identification of risk areas, and prevention of conflict of interest (targeting the most vulnerable areas, such as public procurement). Public awareness is also an important part of prevention. ANI reports improvements in public acceptance of the integrity laws and of the role of the Agency. Compared to previous years, ANI receives many more notifications and complaints when administrations o