Supporting document accompanying the report from the Commission to the European Parliament and the Council on Progress in Romania under the Co-operation and Verification Mechanism - Romania: Technical Update {COM(2008) 494 final}
Date: 2008-07-23
Institutions: European Commission
Subjects: EU control, Romania, cooperation policy, corruption, exchange of information, judicial reform, rule of law

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 23.7.2008 
SEC(2008) 2349 

SUPPORTING DOCUMENT 

accompanying the  

REPORT FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT AND THE COUNCIL 

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

--------- 

ROMANIA: Technical Update  

{COM(2008) 494 final} 

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TABLE OF CONTENTS 

1. 

2. 

3. 

4. 

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.............. 3 

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

Benchmark 3: Building on progress already made, continue to conduct professional, 
non- partisan investigations into allegations of high- level corruption...................... 10 

Benchmark 4: Take further measures to prevent and fight against corruption, in 
particular within the local government. ..................................................................... 13 

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1. 

BENCHMARK 1: ENSURE A MORE TRANSPARENT AND EFFICIENT JUDICIAL PROCESS 
NOTABLY BY ENHANCING THE CAPACITY AND ACCOUNTABILITY OF THE SUPERIOR 
COUNCIL OF MAGISTRACY. REPORT AND MONITOR THE IMPACT OF THE NEW CIVIL 
AND PENAL PROCEDURES CODES. 

Several  measures  taken  to  ensure  coherence  in  jurisprudence  such  as  regular  court 
consultation  meetings,  publication  of  jurisprudence  collections  and  appeals  in  the 
interest  of  the  law  show  continuing  progress.  However,  there  are  problems  of 
incoherence in jurisprudence in both civil and criminal law and these deficiencies hinder 
prosecution  in  high  profile  corruption  cases.  Contradictory  jurisprudence  of  the  High 
Court  of  Cassation  and  Justice  (HCCJ)  in  certain  high  profile  cases  of  high-level 
corruption  has  damaged  efforts  to  move  towards  more  coherent  jurisprudence  within 
the judiciary. 

The human resource situation also raises some concerns. Despite some progress in filling 
positions within the magistracy, difficulties remain regarding admission standards and 
tailored training targeted at specific groups. Consideration should be given to adopting 
the  emergency  measures  suggested  by  the  General  Prosecutor  as  a  way  to  remedy  the 
human  resource  and  management  problems  in  the  Public  Ministry.  The  Superior 
Council of Magistracy (SCM) has been given sufficient resources to operate effectively, 
but difficulties in improving accountability and ethical standards of its members are of 
concern. 

Amendments  to  the  Civil  and  Criminal  Procedure  Codes  were  adopted  in  early  2007, 
but  their  implementation  has  not  been  monitored  since  then.  There  has  been 
considerable  controversy  surrounding  the  proposed  amendments  to  Government 
Emergency Ordinance no 60 of 2006 (GEO 60/2006) on criminal procedures. Drafting of 
the new Criminal and Civil Procedure Codes is progressing. It is very important that the 
draft  that is  ultimately  submitted  is  of good  quality  and  prepared  in  consultation  with 
and supported by judicial institutions.  

Detailed Assessment 

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

Appeals  in the interest of the law were successfully  made  with  a  view to ensuring coherent 
jurisprudence.  Between  June  2007  and  June  2008,  83  appeals  were  filed,  of  which  60  were 
admitted,  4  dismissed  and  19  are  pending.  Decisions  made  by  the  High  Court  of  Cassation 
and Justice (HCCJ) in such appeals are binding for all courts. 20 training seminars were run 
by the National Institute of Magistracy, and a twinning project was established. 

Access  to  jurisprudence  has  also  improved.  Regular  consultation  meetings  were  held  to 
discuss uniformity of court practices and communication among practitioners. In 2007-08 the 
HCCJ organised 67 such meetings with judges from many different courts and specialisations, 
whilst  monthly  meetings  of  magistrates  took  place  within  individual  courts.  Materials 

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highlighting  the  instances  of  non-unitary  jurisprudence  raised  were  submitted  to  the  SCM. 
Courts are also required to publish relevant decisions on their website.  

Contradictory jurisprudence of the HCCJ in certain high profile cases of high-level corruption 
has impeded efforts towards coherent jurisprudence within the judiciary.  

Some deficiencies with the unitary application of civil law were also reported, related to the 
division  of  responsibilities  between  different  court  levels.  Measures  taken  so  far  have  not 
solved the problem.  

•  Design and implement a rational and realistic staffing model for the justice system on the 

basis of the ongoing needs assessment. 

Work  on  the  human  resources  strategy  has  proceeded.  In  May  2008  evaluations  of  the 
complexity of cases at the prosecutors' offices were completed and the optimum workload for 
each judge and prosecutor is now being determined. Jurisdiction rules are also being devised 
in accordance with the new procedural codes, and a working group has been set up to monitor 
their impact. The human resources strategy is scheduled to be finalised by January 2009, but 
this depends on the passage of the new codes which are expected to redistribute competences 
among  courts,  thus  influencing  the  number  of  magistrates  necessary  for  each  court.  A 
German-Romanian twinning project to improve courts management has been established 

The use of interviews in recruitment has continued and between June 2007 and March 2008 
139  candidates  were  appointed  under  this  method.  Law  97/2008,  passed  in  March,  required 
the  SCM  to  establish  objective  interview  criteria.  On  24  April  Government  Emergency 
Ordinance  46/2008  was  published,  proposing  to  replace  the  interviews  with  a  formal 
examination procedure. Although the SCM has cancelled previously scheduled interviews the 
proposed  new  law  is  still  being  debated  in  Parliament.  If  adopted  as  tabled,  this  law  would 
represent  a  positive  step,  as  long  as  the  rigorous  quality  of  exams  is  assured  in  its 
implementation.  

130 candidates with 5 years experience were recruited in a single exam session held in May 
2008.  This  number  represents  a  sharp  increase  in  the  amount  of  candidates  admitted  in  this 
way.  The  exam  held  in  June  2007  enabled  only  2  candidates  to  be  admitted.  Concerns 
regarding lowering of standards have been raised in this context. 

Exams  in  April  2008  admitted  129  candidates  to  executive  positions  and  competitions  to 
recruit 142 judges and 95 prosecutors to leading positions are underway. Vacancies for court 
judges  fell  from  444  to  245,  out  of  a  total  of  4490  positions,  during  2007-2008.  By 
comparison  the  total  number  of  vacancies  at  the  prosecutors'  offices  was  reduced  from  525 
positions  in  June  2007,  to  417  on  1  July  2008,  out  of  a  total  2859  positions.  The  National 
Institute  of  Magistracy  admitted  159  new  magistrates  and  115  trainees  to  vacant  judicial 
positions  in  2007.  More  exams  are  scheduled  for  June,  September  and  November  2008.  To 
address the shortfall in magistrates, the number of places at the NIM was increased by 30%. 
Continuous training and regular performance evaluation should ensure that existing standards 
within the magistracy are maintained.  

Government Emergency Ordinance no 100 of 2007 addressed the secondment of magistrates 
referred to in the June 2007 report by establishing a reserve fund to finance the appointment 

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of staff for temporarily vacant positions1. The reserve fund is an innovative way to address the 
shortage of staff created by secondments, through its utility can be best assessed after it has 
been implemented.  

The  reduction  in  vacancies  and  the  allocation  of  new  judges  to  the  Courts  of  First  Instance 
represent  positive  steps  but  the  recruitment  of  high  numbers  of  judges  compared  to 
prosecutors  is  a  cause  for  concern.  At  present  judges  are  recruited  at  a  higher  rate  than 
prosecutors  despite  the  greater  need  for  staff2  within  the  prosecutors'  offices:  The  focus  on 
recruitment  2007-2008  clearly  was  on  courts  where  vacancies  have  been  reduced  by  45% 
whereas vacancies among the prosecution have only been reduced by 21%.  

Procedures  to  eliminate  excess  posts  have  not  been  altered,  which  might  cause  difficulties 
given the changes to be introduced by the new codes. 

•  Develop  and  implement  a  plan  to  restructure  the  Public  Ministry  that  addresses  the 

existing managerial shortcomings and human resources issues. 

A  plan  to  restructure  the  Public  Ministry  is  being  successfully  implemented.  The  first  two 
steps  were  accomplished  in  early  2007.  The  third  step,  the  redistribution  of  56  positions 
towards prosecution offices with a significantly higher workload or shortfall in personnel was 
completed in October 2007.3 The 2007 Activity Report of the Public Ministry was presented 
on  7  March  2008.  Its  priorities  for  2008  include  addressing  the  shortfall  in  personnel, 
developing  professional  training  programmes,  continuing  the  automation  process  of  the 
prosecutor's  offices,  increasing  efficiency  and  transparency  and  improving  the  Public 
Ministry's image. 

Whilst the redistribution of some prosecutor positions is a welcome step, further measures are 
needed. The number of cases handled has doubled since 1997 but 18% of the positions in the 
prosecutors' offices remain vacant. The workload is unevenly spread as prosecutors in Courts 
of First Instance handle 1,000 to 1,500 cases annually compared to 30-40 cases per year for 
those attached to the Courts of Appeal, but 80% of the Public Ministry's activity is undertaken 
by the local prosecutors' offices.  

A draft law was proposed by the General Prosecutor to temporarily redistribute posts between 
court  levels  as  an  emergency  measure  to  alleviate  the  most  pressing  staffing  problems.  The 
support of the SCM was however not obtained. 

Management  functions,  such  as  promotion,  evaluation,  sanction  and  transfer  of  staff  are  the 
responsibility  of  the  Superior  Council  of  Magistracy.  Systematic  deficiencies  can  therefore 
not  be  addressed  by  the  General  Prosecutor.  Heads  of  Prosecution  offices  are  not  able  to 
sanction  underperforming  staff,  even  in  very  minor  cases,  such  as  arriving  late  to  work. 
Rather, information about the transgression must be forwarded to the SCM, who will decide 

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When the original post holder returns, the replacement staff member will retain the post and the original 
post  holder  will  be  offered  another  position  in  the  same  court  financed  via  the  reserve  fund.  When 
another  position  becomes  vacant  within  that  court/office,  it  shall  be  restored  to  the  reserve  fund  to 
maintain balance. 
In June 2007 18% of positions in prosecutors' offices were vacant, compared to 9% in the courts. 
21  positions  were  redistributed  among  the  Courts  of  First  Instance,  and  the  remaining  35  transferred 
from  the  Prosecutor's  Office  attached  to  the  High  Court  of  Cassation  and  Justice  to  the  Prosecutor's 
Offices attached to the Courts of First Instance. 

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upon and deliver the appropriate sanction. This procedure has reportedly been very slow and 
ineffective in several cases and leaves the supervisor vulnerable to abuse in the meantime. 

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

The  situation  regarding  amendments  to  the  Criminal  Procedure  Code  which  would  severely 
restrict the rights of the prosecution remains uncertain at present4.  

Whilst the majority of problematic provisions initially proposed by the Chamber of Deputies 
have  been  removed  by  the  Senate,  clauses  restricting  the  operation  of  home  search  and 
telephone  interceptions  remain.  If  approved,  these  provisions  will  significantly  impede  the 
ability of prosecutors to gather adequate evidence in criminal cases, most notably corruption 
cases where telephone evidence plays a substantial role. Prosecutors would no longer be able 
to issue temporary wire tapping authorisations and the conditions for interception or recording 
to  begin  have  been  tightened.  Finally,  as  with  the  domiciliary  search,  provisions  have  been 
introduced  prohibiting  the  use  of  evidence  gathered  in  contravention  of  the  specified 
conditions. 

Whilst the amendment law seems to be currently on hold, it has not been finally dropped and 
some of its provisions risk being re-introduced in the new Criminal Procedure Code when it is 
presented to Parliament.  

Amendments to the Civil Procedure Code had already entered into force in January 2007, and 
some initial monitoring of the law's anticipated impact took place then. However in the last 
year authorities have mainly focused on the adoption of the new Civil Procedure Code.  

Information  provided  by  Romanian  authorities  does  not  give  any  indication  of  further 
monitoring  of  the  amendments,  nor  of  inclusion  of  changes  suggested  as  part  of  the  public 
consultation in the draft of the new codes. 

•  Report and monitor on the progress made, as regards adopting the new Codes including 

adequate consultations and the impact it will have on the justice system. 

With  assistance  from  the  German  Foundation  for  International  Legal  Cooperation,  the 
Commission  for  drafting  the  new  Criminal  Procedure  Code  completed  the  final  draft  on  14 
April  2008.  A  copy  has  been  published  on  the  Ministry  of  Justice  website.  At  present 
consultations with several legal institutions are ongoing, and the draft is simultaneously being 
analysed for overall coherence, and compatibility with the new Criminal Code. Practitioners 
criticised the consultation process as not sufficiently transparent and comprehensive. 

The  new  draft  Criminal  Procedure  Code  seeks  to  address  several  problems  of  the  judicial 
process in Romania such as the excessive length of trials and the misuse of procedural rules as 
delaying tactics. The law intends to reduce the number of restitutions of files by court to the 
prosecution  on  procedural  grounds  by  the  introduction  of  a  preliminary  chamber  which  is 
designed  to  ensure  cases  do  not  proceed  without  sufficient  evidence.  The  legality  of  all 

4 

These amendments (GEO 60/2006) were first discussed in parliament in November 2007 and reported 
by the Commission in the interim report of February 2008. 

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indictments would be verified during the pre-trial stage, and if irregularities are found the file 
may be returned to the prosecutor's office.  

Following  a  similar  drafting  process  the  preliminary  draft  of  the  Civil  Procedure  Code  was 
completed on 14 August 2007. Consultations with the courts and main universities took place 
in April 2008, whilst public consultations will continue until September and the endorsement 
procedure  will  begin  thereafter.  In  the  meantime  the  committee  is  analysing  the  comments 
received so far and ensuring the draft is consistent with the text of the new Civil Code.  

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

The  SCM  was  allocated  sizeable  human  and  financial resources in early 2007. Since then a 
new  management  team  has  been  elected,  a  communication  strategy  approved,  9  technical 
positions were added, 2 vacancies were filled and the construction and renovation of courts 
and  prosecutors'  offices  continued.  The  SCM  budget  for  2008  was  increased  by  25%  to 
MEUR  20.1,  though  this  was  accompanied  by  decreases  in  the  budgets  of  other  judicial 
institutions.5 

A regulation enabling a triennial appraisal scheme for magistrates was approved on 4 October 
2007.  Amendments  of  24  January  2008  made  activity  as  a  non-permanent  SCM  member 
incompatible  with  membership  of  an  evaluation  commission,  and  clarified  the  operation  of 
evaluation  commissions  in  courts  or  prosecutors'  offices  with  fewer  than  10  judges  or 
prosecutors.  An  SCM  decision  on  4  October  appointed  evaluation  commissioners,  based  on 
proposals  from  the  leading  boards  of  the  courts  and  prosecutors'  offices.  In  January  2008, 
training  sessions  were  organised  for  them,  and  the  first  round  of  evaluations  began  on  1 
March  2008.  Evaluation  commissioners  are  however  proposed  by  the  courts  whose 
magistrates they will be evaluating, so doubts regarding impartiality have been voiced. 

Despite its key role in promoting a transparent and efficient judicial process, the SCM has not 
yet fully taken responsibility for judicial reform and for its own accountability and integrity: 
Following  a  case  of  fraud  with  a  management  competition,  the  SCM  allowed  a  criminal 
investigation  by  DNA  only  after  a  public  intervention  by  the  General  Prosecutor.  The 
competition  was  not  repeated.  An  investigation  into  disrespect  of  professional  integrity  in 
relation to this case within the SCM was not launched.  

The recruitment of judicial inspectors continued, with 10 new inspectors appointed in 2007-
2008,  so  that  45  out  of  a  total  53  positions  have  now  been  filled.  The  new  inspectors  are 
magistrates  seconded  from  the  courts,  so  they  could  be  asked  to  assess  their  colleagues'  or 
superiors'  performance.  In  this  context  questions  regarding  conflicts  of  interest  have  been 
raised.  The  newly  recruited  inspectors  came  from  a  variety  of  courts  and  offices,  however 

5 

The budget of the prosecution for external expertise was i.e. cut by 30%, despite legal changes which 
will necessitate increased use of such expertise: Article 94 of the Fiscal Procedure Code was modified 
following  GEO  47/2007,  published  in  Official  Gazette  no  603  on  August  31  2007.  The  amended 
provision expressly forbids the taxation authority from drafting technical, scientific or other reports at 
the request of the criminal investigation authorities. Thus the assistance traditionally provided by the tax 
authorities will now need to be provided through use of external experts.  

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only one (Arges Tribunal) is located outside of Bucharest. Efforts should be made to ensure 
new judicial inspectors are geographically representative. 

The judicial inspection within the SCM has not yet  established a track-record for ex-officio 
investigations; guidelines for this purpose are missing.  

2. 

BENCHMARK  2:  ESTABLISH,  AS  FORESEEN,  AN  INTEGRITY  AGENCY  WITH 
RESPONSIBILITIES  FOR  VERIFYING  ASSETS,  INCOMPATIBILITIES  AND  POTENTIAL 
CONFLICTS  OF  INTEREST,  AND  FOR  ISSUING  MANDATORY  DECISIONS  ON  THE  BASIS 
OF WHICH DISSUASIVE SANCTIONS CAN BE TAKEN. 

After  a  considerable  delay  in  2007,  substantial  progress  was  made  in  setting-up  the 
National Integrity Agency (ANI) in the first half of this year. Practical measures to set 
up  the  agency,  such  as  recruitment  of  personnel,  budget  allocation  and  public 
procurement  for  infrastructure  requirements  were  taken.  In  June  2008,  ANI  reported 
on investigation activities in about 40 cases. 

ANI  will  need  to  continue  to  receive  sufficient  budgetary  resources  to  assure  the 
operation of the agency – such as for recruitment and training of inspectors, competitive 
salaries and the installation of suitable IT equipment and software. 

ANI  will  need  to  establish  a  track  record  of  completed  cases  to  demonstrate  that  it  is 
exercising  the  range  of  its  sanctioning  powers.  The  robustness  with  which  ANI  carries 
out its legal mandate and the nature of the supervisory role carried out by the National 
Integrity Council cannot as yet be evaluated.  

Detailed Assessment 

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

The  ANI  legal  framework  was  completed  in  May  2007  with  the  passage  of  Law  144/2007, 
which regulated the agency's establishment, organisation and functioning. On 14 April 2008, 
the Senate issued Law 94/2008, designed to address concerns raised in the June 2007 report. 
The  law  clarified  the  mandate  of  ANI  inspectors,  enabling  them  to  pursue  "unjustified" 
instead of "illegal" wealth, decreased the financial threshold required for an investigation6 and 
clarified the status of ANI personnel. These changes corrected shortcomings of Law no 144/ 
2007, and meant that the administrative prerequisites for ANI's functioning were in place. 

Although the completion of the legal framework for ANI was certainly a positive step, some 
provisions in the present law may have an adverse impact on the agency's effectiveness. For 
example  notifications  cannot  be  anonymous  as  they  must  indicate  the  sources  of  their 
information,  and  be  dated  and  signed,  before  they  can  be  taken  into  account.  Preliminary 
inquires must be carried out within 30 days, and the scope of an investigation may not extend 

6 

See  Article  4(4).  The  initial  provision  defined  the  obvious  difference  between  assets  and  revenues  as 
being  higher  than 10% but no  less  than 20,000  EUR.  The  new provision  redefines  this  expression so 
that investigation can start after a difference of only 10,000EUR between assets and revenues has been 
demonstrated 

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beyond the issues raised in the complaint. Inspectors do not have powers of subpoena nor the 
express right to request information of a sensitive nature.7 

If  irregularities  are  found,  ANI  will  notify  relevant  institutions so  that  they  can  take  further 
action. Thus ANI cannot take mandatory decisions itself but is able to ask the court to order 
confiscation  of  wealth  considered  unjustified,  and  request  disciplinary  sanctions  such  as 
dismissal  or  suspension.  The  legal  basis  enabling  confiscation  of  wealth  considered 
unjustified  was  called  into  question  by  a  Constitutional  Court  decision  taken  on  17  April 
2008. The decision declared that the draft Law amending Law 115/1996 was unconstitutional, 
because  it  mandated  the  confiscation  of  "unjustified  wealth"  in  contradiction  to  the 
Constitutional  presumption  that  all  wealth  has  been  obtained  legally.  As  a  result  the 
confiscation  of  unjustified  assets  may  be  challenged  in  court  and  may  ultimately  not  be 
possible. 

The  role  of  the  National  Integrity  Council,  ANI's  governing  body,  has  also  been  extended. 
This discussion has given rise to concerns regarding the independence of ANI. The Council, 
formed in May 2007 to appoint the President and Vice President of ANI, is now empowered 
to  screen  all  ANI  staff  in  terms  of  incompatibilities,  unjustified  wealth  and  conflicts  of 
interest,  just  as  ANI  inspectors  screen  the  assets  of  high  level  officials  and  politicians..  In 
addition, the Council can evaluate ANI's managerial capacity and propose the dismissal of the 
President  or  Vice  President.  Previously  these  tasks  were  undertaken  by  an  independent 
external auditor. In order to assist the Council in its assessment, the ANI President must report 
to  the  Council  on  the  agency's  activities,  and  provide  it  with  access  to  documents  when 
requested. 

•  Establish  such  a  National  Integrity  Agency;  ensure  it  has  the  necessary  human  and 

financial resources to fulfil its mandate. 

Despite initial expectations that ANI would be fully operational by October 2007, this target 
has not been achieved though attempts were made to hasten the agency's set up. In December 
Government  Emergency  Ordinance  no.  138  of  2007  (GEO  138/2007)  introduced  interim 
measures giving ANI's Vice President all the prerogatives of President, including the power to 
act  as  the  agency's  chief  financial  officer.  Administrative  measures  were  undertaken 
thereafter, and on 15 April 2008 the Senate appointed a President, following the proposal of 
the National Integrity Council. 

By June this year, ANI reported first investigation activities in about 40 cases on the basis of 
signals  from  press.  Model  registries  of  declaration  of  assets  and  interests  and  a  guide  for 
completing  them  have  been  drafted.  In  January  2008  equivalent  organisations  within  and 
outside the EU were contacted to establish cooperation. 

At present ANI has 100 employees, including 42 integrity inspectors and recruitment for more 
personnel,  including  a  Vice  President,  is  continuing.  In  addition  the  agency's  ongoing 
activities  include  training  courses,  drafting  an  internal  code  of  conduct,  elaborating  a  mid-
term  management  strategy,  and  designing  a  database  for  storing,  processing  and  analysing 
declarations. 

7 

Article 5 states that information may be requested from "all public institutions and authorities involved, 
as  well  as  other  public  or  private  legal  persons"  and  may  include  "  the  documents  and  information 
necessary." Discussions with ANI officials revealed that this provision is being interpreted to exclude 
financial, personal, or similarly classified information. 

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Whilst most of these developments are positive, some detract from overall progress towards 
achieving  this  benchmark.  They  should  be  rectified.  For  example,  the  salaries  paid  to 
inspectors may not attract the best candidates, whilst the institution's training budget may not 
cover all of the training needs involved in setting up a new institution, especially one whose 
operation is largely unprecedented within the EU. Furthermore, the budget proposal for a new 
data  processing  system,  to  scan  and  comparatively  analyse  data  from  the  60,000  wealth 
statements held by ANI, was initially rejected by the government. Combined, these budgetary 
issues  may  influence  the  effectiveness  of  the  agency.  A  longer  term  view  is  necessary  as 
completion of this benchmark will require a thorough assessment of the agency's functioning 
in  practice,  which  will  be  possible  only  when  ANI  has  an  established  track  record  of 
completed cases.  

3. 

BENCHMARK 3: BUILDING ON PROGRESS ALREADY MADE, CONTINUE TO CONDUCT 
PROFESSIONAL,  NON-  PARTISAN  INVESTIGATIONS  INTO  ALLEGATIONS  OF  HIGH- 
LEVEL CORRUPTION. 

Aside  from  the  continuously  good  track  record  shown  by  the  National  Anticorruption 
Directorate  (DNA),  the  fight  against  high  level  corruption  has  overall  not  shown 
convincing progress since June 2007. As reported then courts continue to deliver lenient 
sentences  and  inconsistent  sanctions.  The  key  cases  concerning  high  profile  politicians 
show no real progress. 

Despite  intense  political  and  legal  debate,  Romania  managed  to  keep  the  institutional 
framework for the fight against corruption intact. The legal framework remains weak in 
some  areas,  with  restrictions  on  the  powers  of  specialised  authorities,  and  increased 
requirements  for  some  investigations.  Inconsistent  decisions  delivered  by  the  HCCJ  in 
high  profile  cases  work  to  diminish  public  trust  in  the  fight  against  corruption.  There 
appears  to  be  insufficient  awareness  of  the  problem  of  high  level  corruption  within 
parliament.  

Detailed Assessment 

•  Continue  to  provide  a  track  record  of  professional  and  non-partisan  investigations  into 

high-level corruption cases.  

The  DNA  continued  its  activity,  with  385  persons  indicted  as  a  result  of  146  suits  brought 
between 1 June 2007 and 10 June 2008. These included 80 non-final convictions delivered by 
the courts against 132 defendants, and 69 final convictions rendered against 107 defendants. 

The sentences awarded ranged in length from 3 months' to 5 years' imprisonment for non-final 
convictions, and from 3 months' to 7 years' imprisonment in the case of final convictions. In 
both  categories  the  majority  of  sentences  were  either  conditionally  suspended  or  suspended 
under  probation;  the  rest  were  enforced  sentences.  These  convictions  account  for  60%  and 
64% of the defendants respectively.  

In 2007 the number of public sector employees given final convictions was 18% higher than 
the number of private sector employees. Despite their greater representation, penalties overall 
were lower for public sector than private sector employees. For example 12 public officials 
were  sentenced  to  detention,  compared  to  16  private  sector  defendants,  and  suspension  was 
given to 47 public officials whilst those from private sector received 34 suspensions.  

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The  DNA  has  prosecuted  17  high  profile  cases.  Three  of  those,  each  concerning  former 
ministers, were returned to the prosecution by the HCCJ. Justification for the restitution was 
based  on  the  retrospective  application  of  a  Constitutional  Court  judgement  taken  in  July 
2007.8 Reasons for the HCCJ decision in one case reveal that the restitution will nullify all of 
the investigative acts carried out by the prosecutors in that case.  

Delays in the criminal trial process were addressed in a bill initiated by the Ministry of Justice 
in 2007. The text removes the automatic suspension of trials whilst the Constitutional Court 
deliberates  on  objections  of  unconstitutionality.  The  government  and  the  Chamber  of 
Deputies  approved  the  law,  however  it  is  pending  analysis  by  the  Senate,  which  is  the 
decision making chamber in this case. If adopted, the changes introduced by the new law will 
be  complemented  by  the  introduction  of  the  Preliminary  Chamber  in  the  draft  criminal 
procedure code, designed to ensure cases do not proceed without sufficient evidence.  

The number and profile of new investigations initiated by the DNA shows a good track record 
of non-partisan investigation into high level corruption, however the courts have not increased 
their delivery of dissuasive sanctions in the majority of cases. Despite requests by prosecutors 
for stiff penalties, the minimum sentence is awarded in most cases. The government set up a 
working group to undertake a comparative analysis of court decisions in July 2007 however 
this group has not yet produced any results. In reaction to the lack of results from the working 
group, the DNA itself conducted a sample analysis of the penalties given to 108 defendants in 
2007,  which  revealed  that  90%  were  awarded  the  lowest  penalty  possible,  whilst  only  a 
quarter were sentenced to detention. 

Some  progress  can  be  recorded  on  smaller  measures.  For  example  the  programme 
implemented by the General Prosecutor to combat corruption involves practical and effective 
steps  to  broaden  the  scope  for  investigations  into  corruption  and  ensure  that  operations  are 
carried  out  as  efficiently  as  possible.  In  addition,  the  cooperation  between  the  General 
Prosecutor's Office, DNA and local prosecutors' is good and effective.  

A  set  of  measures  to  prevent  and  fight  corruption  have  been  proposed  by  the  General 
Prosecutor  and  implemented  via  the  Action  Plan  of  the  Ministry  of  Justice.  In  December 
2007, prosecutors were recruited to form a national network of corruption investigators. These 
prosecutors,  attached  to  the  tribunals  and  courts  of  appeal,  would  be  responsible  for 
investigating  any  corruption  cases  falling  outside  the  remit  of  the  DNA.  Their  appointment 
was  followed  by  a  round  of  specialised  training  sessions  with  DNA  prosecutors  and  police 
officers in May 2008. Opportunities for continued specialised training will be coordinated by 
the Public Ministry. Finally the General Prosecutor's Office set up a working group to draft a 
manual of best practices for investigating criminal corruption cases, based on the observations 
and  conclusions  drawn  from  the  training  sessions.  The  manual  will  be  finalised  by  August 
2008 and disseminated to prosecutors. 

Ten  training  seminars  were  also  organised  by  the  National  Institute  of  Magistracy  and  the 
Fight against Fraud Department between June 2007 and March 2008. They covered a range of 
issues  including  financial  offences,  fraud  against  EU  interests,  the  fight  against  corruption, 
high  level  corruption  and  judicial  sanctions,  and  judicial  cooperation  in  criminal  matters. 
European Commission funding was used to finance the seminars, while international experts 

8 

Constitutional  Court  decision  665/5.07.2007  required  that  former  ministers  be  subject  to  the  same 
restrictions on lifting political immunities as those ministers still in office. 

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provided  technical  assistance.  Seminars targeted professionals  dealing  with  corruption  cases 
and were attended by judges, prosecutors, DNA staff, police officers and magistrates.  

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

The Act concerning the organisation and functioning of the DNA was not modified. Likewise 
no  changes  were  made  in  relation  to  the  nomination  and  revocation  procedures  for  relevant 
high  level  positions  since  the  Commission's  last  comprehensive  report  was  issued  in  June 
2007.  This  represents  a  positive  development.  Nonetheless,  a  series  of  Constitutional  Court 
decisions  and  legislative  modifications  made  over  the  last  year  could  seriously  weaken  the 
fight against corruption.  

•  A  decision  of  the  Constitutional  Court  delivered  in  July  2007  restricted  the 
operation  of  the  military  section  of  DNA  by  prohibiting  it  from  further 
investigating cases involving both civilians and military personnel. 

•  In  August  Article  94  of  the  Fiscal  Procedure  Code  was  altered  to  forbid  the 
taxation authority from drafting technical or scientific reports at the request of the 
criminal  investigation  authorities,  and  the  special  procedure  enforced  for 
investigating current ministers was extended to cover former ministers. 

•  In  October  the  Constitutional  Court  declared  relevant  provisions  of  the  laws 

relating to ministerial accountability9 unconstitutional. 

•  Requirements  for  investigating  ministers  concurrently  serving  as  Members  of 

Parliament were tightened in March 2008. 

For  investigations  to  begin,  the  assent  of  Parliament  is  now  required,  in  addition  to  the 
consent  of  the  President.  Despite  a  public  statement  on  22  April  2008  that  no  public 
procedures currently exist to process such requests the Legal Committee of the Chamber of 
Deputies already advised the plenum in two cases.10 

In each case the relevant Constitutional Court decision or legislative amendment restricts the 
operation  of  an  anti-corruption  body,  or  increases  the  requirements  which  must  be  satisfied 
before investigations can begin. At a practical level, implementation of the changes resulted in 
blockages  and  delays  at  the  prosecution  stage.  Whilst  the  provisions  of  the  Romanian 
Constitution  must  naturally  be  respected, 
these  amendments  do  not  aid  effective 
investigations  into  allegations  of  high-level  corruption,  and  may  obstruct  progress  towards 
reaching  this  benchmark.  Careful  assessment  of  the  impact  of  draft  laws  on  the  ability  of 
relevant  authorities  to  successfully  investigate  and  prosecute  crimes  of  corruption  must 
become the norm if progress against this benchmark is to be achieved. 

9 
10 

GEO 95/2007 and article 16 of Law 115/1999 were declared unconstitutional 
The  Legal  Committee  of  the  Chamber  of  Deputies  recommended  against  starting  investigations 
concerning  former  transport  minister  Miron  Mitrea  in  May  2008,  and  former  Prime  Minister  Adrian 
Nastase in June 2008. 

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Against this background the need for institutional continuity must especially be emphasised. 
In particular the nomination and revocation procedures for relevant high level positions must 
be  maintained.  DNA's  strong  record  of  investigating  and  prosecuting  prominent  corruption 
cases should not be disrupted if progress toward this benchmark is to continue to advance.  

4. 

BENCHMARK  4:  TAKE  FURTHER  MEASURES  TO  PREVENT  AND  FIGHT  AGAINST 
CORRUPTION, IN PARTICULAR WITHIN THE LOCAL GOVERNMENT. 

The number and variety of awareness campaigns undertaken by Romanian authorities 
show  a  willingness  to  act  constructively  to  combat  local  corruption.  These  campaigns 
have contributed to raising awareness about the disadvantages of corruption, but more 
measures need to be taken in order to explain to average citizens how they could combat 
corruption. Research has not been conducted to determine the most vulnerable sectors, 
and authorities in  some  traditionally susceptible sectors, such  as health  and  education, 
demonstrated little awareness of the extent of the problem. Further critical analysis of 
the  impact  of  campaigns  and  corruption  within  different  sectors  is  needed  to  enable 
more  targeted  actions  in  future.  An  effective  and  comprehensive  system  to  collect  and 
follow-up  corruption  signals  of  diverse  origins  providing  for  easy  access  and  the 
protection of confidentiality is missing. 

Efforts  to  improve  local  administration  services  were  also  made  by  bodies  responsible 
for many different sectors. Revision of legislation, faster and more efficient procedures 
and improved public access to information are effective steps to reduce opportunities for 
corruption,  though  ongoing  implementation  must  be  monitored  to  ensure  results  are 
demonstrated in the long term. More investigation and sanctioning of public officials for 
corruption  offences  are  necessary  to  reinforce  the  message  sent  by  the  legal  and 
administrative changes and awareness campaigns. 

Detailed Assessment 

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

Campaigns to combat corruption were initiated or continued by a wide variety of institutions. 
For  example,  the  Ministry  of  Justice  conducted  the  "No  Bribe"  campaign  from  16  October 
2007  until  27  February  2008.  A  variety  of  media,  internet  and  direct  information  methods 
were used to target different sectors of the population with the overall message "don't bribe 
and don't accept bribes". The impact of the campaign was assessed by means of a sociological 
analysis conducted in February 2008, which gave the campaign a very positive evaluation. 

In May 2007, the General Anti-Corruption Directorate (GAD) within the Ministry of Interior 
and  Administrative  Reform  re-launched  the  "Public  Awareness  Campaign".  It  consisted  of 
radio and television segments with real life corruption scenarios, and encouraged citizens to 
call  the  Green  Helpline  (TELVERDE)  and  receive  counselling  and  practical  advice.  Since 
May  2007  voice  messages  and  calls  to  the  Green  Helpline  have  increased  by  50%.  Other 
measures  were  numerous,  including  anti-corruption  groups  and  youth  training  programmes 
conducted  by  the  National  Integrity  Centre,  an  anti-corruption  caravan  organised  by  the 
Ministry of Interior and Administrative Reform, and audio campaigns and manuals prepared 
by the Agency for Governmental Strategies.  

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Whilst the extent of projects undertaken by different institutions to combat local corruption is 
encouraging, the lack of analytical information or assessment of the campaign's impact makes 
their  utility  hard  to  measure.  Although  it  must  be  recognised  that  a  cultural  change  is 
necessary  before  corruption  can  be  dramatically  reduced,  independent  information  does  not 
reveal a positive trend at the local level. A study undertaken by Transparency International in 
April  2007  asked  Romanian  citizens  a  range  of  questions  regarding  their  perception  of 
corruption. 38% of those surveyed said almost all public institutions employees are corrupt, 
while  44%  said  that  many  are.  Despite  the  fact  that  a  majority  agreed  with  statements  like 
"Corruption  makes  the  rich  even  richer"  or  "Corruption  lowers  the  population  living 
standards",  69%  considered  that  failure  to  give  a  bribe  would  result  in  their  problems  not 
being solved. It is clear from the survey that whilst Romanians generally condemn corruption 
acts in principle, they consider that corruption is in practice widespread, and a problem which 
is beyond their control. 

Vulnerable  sectors  were  not  especially  targeted  by  the  measures  put  in  place.  Instead 
authorities in fields such as health and education denied the existence of a serious problem, 
citing  as  evidence  the  lack  of  complaints  of  corruption.  They  reported  that  the  disciplinary 
structures in place were rarely used, citing very low numbers of disciplinary measures taken 
and minimal sanctions delivered. However, reports from civil society suggest that corruption 
is  common  practice,  with  neither  party  involved  in  a  corrupt  transaction  likely  to  complain 
about it. For example, a pilot study run by the Coalition for Clean Universities reported that 
universities have a high degree of autonomy and administrative discretion due to the lack of 
transparency  and  of  genuine  accountability  mechanisms  such  as  students'  evaluations  and 
ethics committees.  

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

Many  measures  have  been  taken  to  improve  the  quality  of  public  services  and  reform  the 
administrative  system,  thus  ensuring  reduced  opportunities  for  corruption.  Services  at  both 
central and local levels were involved. For example the Ministry of Economy and Finances, 
and  the  National  Agency  for  Fiscal  Administration  acted  to  reduce  timeframes  for  issuing 
important  documents,  revise  relevant  legislation,  implement  online  facilities,  and  streamline 
administrative procedures, in order to increase transparency within the business environment.  

In  order  to  improve  the  work  of  the  National  Integrity  Centre,  a  protocol  was  concluded 
between  the  Association  for  Implementation  of  Democracy  (AID)  and  the  Ministry  for 
Interior and Administrative Reform (MIAR) in November 2007. New premises and facilities 
ensured  the  Centre's  continued  activity.  Since  then  anti-corruption  groups  and  debates  were 
organised  in  20  different  counties,  bringing  together  representatives  of  anti-corruption 
institutions and civil society. Proposals drafted as a result of the debates will form the basis of 
national,  local  and  regional  plans  to  promote  integrity.  Measures  anticipated  include 
improving  legislation,  reforming  local  public administration  and  the  institutional  framework 
and development of best practises in preventing corruption.  

A  substantial  twinning  project  funded  through  PHARE  and  initiated  in  December  2006 
assisted  the  National  Civil  Servants  Agency  to  re-define  its  human  resources  policies  and 
internal practices. These reforms were conducted with the aim of enhancing the transparency 
and  integrity  of  the  civil  servants'  performance  in  public  office.  Improving  civil  servants' 
integrity  was  also  the  objective  of  the  training  sessions  organised  for  MIAR  employees.  A 

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total of 2225 meetings were attended by 32,500 people, including 1113 sessions specifically 
organised for staff in leading positions. 1664 integrity training sessions were conducted for all 
new  employees,  namely  those  44,916  staff  members  hired  since  January  2006.  Possibly 
inspired  by  the  training  sessions  conducted,  150  ministry  personnel  informed  GAD  about 
instances of bribery between July 2007 and May 2008, and 29 corruption notifications were 
received.  According  to  recent  information  submitted  by  the  Romanian  authorities,  between 
June  2007  and  May  2008,  GAD  sent  to  the  prosecutor's  offices  1144  prosecution  files 
concerning  corruption  offences  committed  by  MIRA  staff;  the  prosecutors  indicted  552 
persons, issued 132 public prosecution indictments and 87 administrative measures. 

The National Civil Servants Agency also centralised all data on breaches of code of conduct 
committed  by  civil  servants  at  central  and  local  level.  Their  reports,  published  on  the 
Agency's  website,  reveal  that  in  2007-2008  the  disciplinary  commission  received  275 
notifications, 2 of which concerned incompatibilities or conflict of interest, and 273 cases of 
infringement  of  the  code  of  conduct.  240  sanctions  were  given,  most  commonly  written 
reprimands  and  financial  penalties.  Likewise  personnel  from  the  Ministry  of  Interior  and 
Administrative Reform committed 3216 infringements of the norms of conduct, in most cases 
receiving  a  reprimand,  warning  or  financial  penalty.  The  National  Agency  for  Fiscal 
Administration  received  485  notifications  between  June  2007  and  February  2008,  of  which 
134 resulted in disciplinary sanctions. 

Fraudulent  abuse  of  EU  funds  was  targeted  by  the  Department  for  the  Fight  against  Fraud, 
which opened 70 new cases between June 2007 and March 2008, raising the total number of 
cases  under  investigation  to  105.  Of  these,  68  cases  were  finalised  and  37  cases  are  in 
progress. In 14 cases where potential fraud or irregularities were discovered, the cases were 
forwarded  either  to  the  DNA  or  to  the  competent  prosecutor's  office.  Cooperation  with  its 
European  Union  counterpart,  OLAF,  also  took  place,  as  did  cooperation  with  Romanian 
General  Police  Inspectorate,  Financial  Guard  and  State  Construction  Inspectorate.  Most 
recently, on  8 June 2008 the Government published the National  Anticorruption Strategy in 
Local Public Administration.  

Several measures taken under this benchmark show how effective certain tools can be in the 
fight  against  corruption  at  a  local  level.  For  example,  measures  taken  to  improve  public 
services,  such  as  reducing  face  to  face  contact  with  institution  staff  and  streamlining 
procedures may remove the opportunities for corruption by local officials. These programmes 
can be effectively complemented by the follow up of ideas raised in public discussion within 
the anticorruption groups organized at local level.  

Nonetheless,  independent  information  demonstrates  that  problems  in  public  administration 
persist.  At  the  most  public  level,  allegations  of  corruption  amongst  candidates  for  local 
elections  persist.  The  Coalition  for  a  Clean  Government,  a  civil  society  group  including 
NGOs  and  trade  unions  monitored  the  integrity  of  candidates  running  for  the  Presidency  of 
the County Councils in the June 2008 electoral campaign. This position is filled for the first 
time by direct election and is key for the implementation of EU funds on a local level. Out of 
150  candidates,  the  coalition  found  that  54  had  previous  integrity  transgressions,  such  as  a 
corruption charge by the prosecution, materially profited from conflicts of interest or broken 
fiscal regulations in the distribution of funds. 13 of the 54 candidates concerned were elected.  

In  addition,  administrative  practice  still  suffers  from  shortcomings  that  may  encourage 
corruption. The persistence of such problems suggests that measures currently being taken are 
not yet having the required impact. These shortcomings include a frequent failure to respond 

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to  public  information  requests,  incomplete,  inconclusive  or  late  information,  and  lack  of 
professional training. 

The increased number of investigations and referrals of allegations of fraudulent abuse of EU 
funds indicate a promising trend. However more results must be demonstrated to be able to 
report  real  progress.  Of  more  concern  is  the  lack  of  sanctions  being  taken  against  public 
officials  who  commit  acts  of  corruption.  Statistics  on  disciplinary  measures  taken  against 
public officials show a predominance of infringements of the code of conduct and very few 
cases  of  incompatibility  or  conflict  of  interest.  Accordingly  the  sanctions  given  are  usually 
lower-level penalties, usually consisting of a warning, reprimand or financial penalty. Whilst 
adherence to the codes of ethics is naturally desirable, these statistics do not demonstrate an 
effective  system  for  investigating  and  sanctioning  cases  of  corruption  within  local 
administration. 

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