Interim Report from the Commission to the European Parliament and the Council On Progress in Romania under the Co-operation and Verification Mechanism
Date: 2009-02-12
Institutions: European Commission
Subjects: EU control, Romania, cooperation policy, corruption, exchange of information, judicial reform, rule of law

EN 

EN 

   EN 

 
 
COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 12.2.2009 
COM(2009) 70 final 

INTERIM REPORT FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT AND THE COUNCIL 

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

EN 

   EN 

 
 
 
  
INTERIM REPORT FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT AND THE COUNCIL 

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

1. 

INTRODUCTION  

When Romania entered the EU on 1 January 2007, a Co-operation and Verification 
Mechanism  (hereafter  CVM)1  was  set  up  to  help  Romania  remedy  certain 
shortcomings in the areas of judicial reform and the fight against corruption and to 
monitor progress in these areas through periodical reports. 

The  present  report  is  an  interim  report  providing  a  technical  update  on  significant 
developments having occurred during the last 6 months in Romania under the CVM2. 
It  does  not  contain  an  assessment  on  progress  achieved.  The  update  is  limited  to 
measures that have either been completed or where their finalisation can be expected 
shortly. 

The Communication adopted by the Commission on 23 July 2008 remains the point 
of reference for the assessment of progress achieved against the benchmarks and the 
identification  of  the  remaining  challenges.  The  Commission  will  make  its  next 
assessment in summer 2009. 

2. 

JUDICIAL REFORM AND THE FIGHT AGAINST CORRUPTION: STATE OF PLAY  

The  pace  of  progress  noted  in  the  Commission's  report  of  July  2008  has  not  been 
maintained.  Although  there  have  been  some  positive  signals  in  judicial  reform, 
results are difficult to demonstrate. The Government has finalised draft amendments 
to the Civil Code, a draft of the Criminal Code and drafts of the Criminal and Civil 
Procedures Codes, but they still need to be adopted. The intentions of the Superior 
Council  of  the  Magistracy  to  accept  more  ownership  for  judiciary  reform  are 
encouraging but need to be translated into deeds. The National Integrity Agency has 
established an operational record of cases. This needs to be maintained. 

In  most  other  areas,  shortcomings  identified  by  the  Commission  in  July  remain. 
Although  the  Constitutional  Court  has  recently  rejected  amendments  to  the  Penal 
Procedure Code3 which would severely restrict the rights of the prosecution, the legal 
situation remains unresolved and ambiguous. Some investigations of high level cases 
remain blocked by the Romanian Parliament. In addition, access to and unification of 

1 

2 
3 

Commission  Decision  2006/928/EC  of  13  December  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 and organised crime (OJ L 354, 14.12.2006, p. 56). 
The cut-off date of this report is 15 January 2009. 
Introduced  by  the  law  on  approval  of  emergency  ordinance  60/2006  and  further  amended  by 
Parliament. 

EN 

2 

   EN 

 
                                                 
jurisprudence, the accountability of magistrates and the shortcomings in staffing and 
management of the judiciary still await significant improvement.  

It is important that the Romanian authorities regain its momentum on judicial reform 
and  the  fight  against  corruption  so  as  to  reverse  certain  backward  movements  of 
recent months4. 

3. 

CONCLUSION - OUTLOOK 

The  next  assessment  of  progress  by  the  Commission  in  summer  2009  will  show  to 
which  extent  Romania  has  been  able  to  successfully  address  the  shortcomings 
identified  in  the  reform  of  the  judiciary  and  to  produce  convincing  and  tangible 
results in the fight against corruption. 

It  will  be  crucial  for  Romania  to  achieve  significant,  irreversible  progress  by  then. 
Romania  must  demonstrate  the  existence  of  an  autonomously  functioning,  stable 
judiciary which is able to detect and sanction corruption and preserve the rule of law. 
This means in particular adopting the remaining laws needed to modernise the legal 
system and showing through an expeditious treatment of high-level corruption cases 
that  the  legal  system  is  capable  of  implementing  the  laws  in  an  independent  and 
efficient way. 

4. 

TECHNICAL UPDATE ON BENCHMARKS 

4.1. 

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 

Romania has finalised draft amendments to the Civil Code, a draft of the Criminal Code and 
drafts of the Criminal and Civil Procedures Codes. The new government decided to withdraw 
the drafts from Parliament in January 2009. Political agreement on the drafts must be found. 
An assessment of the impacts of the codes and a meaningful consultation process must still 
take  place.  The  successful  implementation  of  these  codes  will  depend  on  the  allocation  of 
sufficient financial resources, the recruitment and re-allocation of staff. On 14 January 2009, 
the  Constitutional  Court  declared  that  the  controversial  law  adopted  in  October  2008 
approving  the  Government  Emergency  Ordinance  (GEO)  60/2006,  which  would  restrict  the 
rights  of  the  prosecution  in  the  investigation  of  serious  cases,  is  unconstitutional.  The 
problems surrounding this ordinance will be fully solved when the new Criminal Procedure 
Code is adopted. 

The  capacity  of  the  judicial  system  in  Romania  is  still  weak.  The  number  of  vacancies 
remains unacceptably high - 433 vacancies for prosecutors and 344 vacancies for judges at 31 

4 

Romania  went  through  legislative  elections  and  the  formation  of  a  coalition  Government  towards  the 
end of the reference period. 

EN 

3 

   EN 

 
                                                 
December 20085. The statistics provided by the SCM as to 10 December 2008 indicate that 
about half of all vacancies relate to managerial positions6. 

The  Human  Resources  Strategy  adopted  by  the  SCM  in  November  2008  does  not  propose 
appropriate  emergency  measures  such  as  a  temporary  reallocation  of  staff  between  court 
levels and locations to address the pressing staffing shortfall7. The strategy does not yet take 
into  account  the  necessary  reorganisation  of  courts  and  prosecutors’  offices.  The  important 
numbers  of  active  magistrates  who  are  currently  entitled  to  retire  at  any  moment  add 
uncertainty to the staffing situation and reduce the margin for structural reform8. Furthermore, 
the high level of secondments of magistrates to various public institutions creates temporary 
vacancies  which  cannot  be  filled  by  a  reserve  fund  established  for  this  purpose9.  While 
maintaining  a  high  quality  of  recruitment  and  training,  Romania  must  urgently  address  the 
pressing capacity problems of the judiciary. 

The High Court of Cassation and Justice (HCCJ) needs to improve its practice as guardian of 
jurisprudence10.  The  lack  of  unified  and  clear  jurisprudence  remains  of  high  concern  in 
relation  to  legal  certainty  and  transparency11.  Romania  has  established  a  working  group  in 
order  to  improve  the  uniformity  of  jurisprudence  on  the  level  of  penalties  in  cases  of 
corruption.  First  results  of  this  working  group  are  expected  in  May.  The  impact  of  other 
activities to promote legal unification, such as periodic meetings at appeal court-level, cannot 
yet be assessed. 

With regard to transparency, the authorities have focused on the publication of judgements on 
the  courts'  websites.  On  27  November  2008,  the  Superior  Council  of  Magistracy  (SCM) 
adopted  a  decision  which  obliges  courts  to  publish  all  relevant  judicial  decisions  on  the 
internet.  However,  criteria  to  ensure  data  protection  and  the  consistency  of  the  type  of 
decisions published by Courts do not yet exist. An IT tool that would allow swift publication 
of all judgements has not yet been put into operation. 

Out  of  53  positions  for  judicial  inspectors,  44  were  filled  as  of  January  2009.  The  over-
representation  of  inspectors  seconded  from  Bucharest  remains,  despite  the  adoption  of  new 

5 

6 

7 

8 

9 

10 

11 

and 

judges 

Although  prosecutors  vacancies  decreased  by  107  overall  in  2008  and  vacancies  of  judges  remained 
almost stable with a decrease by 3 vacancies in 2008, the trend in the last six months of last year has 
been particularly negative with a net increase of 99 vacancies for judges (rising from 245 to 344) and a 
net increase of 16 vacancies for prosecutors (from 417 to 433). 
On 10 December 2008 there were 154 vacant managerial positions in the courts out of total 309 vacant 
judges' positions and 219 vacant managerial positions of prosecutors out of total 475 vacant prosecutors' 
positions. 
The  General  Prosecutor  reported  in  December  that  the  number  of  the  prosecution  offices  unable  to 
function properly rose from 22 to 49 in the last months. Two prosecution units have no prosecutors. 
eligible  
662 
for  pension  December  2008.  The  precise  number  of  active  magistrates  with  pension  decisions  is  not 
known but estimated at several hundreds. 
The  number  of  secondments  (84  judges  and  75  prosecutors  as  to  16  December  2008)  exceeds  the 
number of posts in the reserve fund by more than 60%. 
The European Court of Human Rights stated in two cases published in 2008, violations of human rights 
resulting  from  inconsistent  judgements  of  the  High  Court  of  Cassation  and  Justice  which  were  in 
contradiction  to  the  principle  of  legal  certainty.  See:  cases  Beian  v.  Romania  no.  30658/05,  Driha  v. 
Romania no. 29556/02. 
For instance, the motivation of the High Court of Cassation and Justice in a highly-publicised appeal in 
the  interest  of  the  law  concerning  property  restitution  (determined  in  June  2008)  has  not  yet  been 
issued. 

prosecutors  met 

and  were 

conditions 

legal 

360 

the 

EN 

4 

   EN 

 
                                                 
rules for secondments of inspectors by the SCM on 27 November. Recent secondments to the 
inspectorate indicate in addition that these rules have not yet been fully applied. 

The Inspectorate conducted general inspections of the entire activities of some judicial bodies 
and  thematic  inspections  of  various  courts  and  prosecutor  offices.  It  also  submitted  to  the 
Ministry  of  Justice  an  unreported  number  of  proposals  for  legislative  changes.  Until  now, 
some  of  its  disciplinary  inspections12  resulted  in  the  imposition  of  disciplinary  sanctions  by 
the SCM13. 

4.2. 

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 

The National Integrity Agency (ANI) has reached its initial staffing goals with the recruitment 
of  60  inspectors.  However,  further  investment  in  logistics,  equipment,  case  management 
software and human resources is needed for ANI to achieve full operational capacity. By the 
beginning of December, ANI had performed checks on 1500 cases and applied 470 fines for 
failure  to  comply  with  submission  deadlines  for  declarations  of  assets  and  declarations  of 
interest. At the same time, ANI had submitted one case to court and 16 cases to prosecutors' 
offices  for  follow-up.  The  range  of  individuals  under  investigation  included  Members  of 
Parliament, ministers, mayors, magistrates, university professors and police officers. 

The  agency  succeeded  in  rejecting  an  attempt  by  a  member  of  its  supervisory  body,  the 
National Integrity Council, to influence its decision making on an individual case. 

ANI  will  need  to  demonstrate  that  it  is  able  to  extend  its  investigations  without  outside 
interference  and  with  the  full  cooperation  of  other  state  authorities.  It  is  too  early  to  see 
whether its investigations will be effectively followed up by the judiciary. 

4.3. 

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

investigations 

The National Anticorruption Directorate (DNA) continues to show a stable and positive track 
record for prosecuting cases of high-level corruption14. 

Parliament  needs  to  improve  its  handling  of  high-level  corruption  cases  and  allow  the 
investigation of all appropriate cases by the judicial authorities. Although investigations were 

12 

13 

14 

Between  1  January  and  19  December  2008  Judicial  Inspection  took  on  5987  notifications  on 
misconduct of magistrates and verified 34 cases started on the initiative of the SCM. Consequently, it 
sent 311 notifications for a possible disciplinary follow-up to the discipline commission for judges in 
the SCM and 128 notifications to the discipline commission for prosecutors in SCM. 
These  disciplinary  sanctions  were  imposed  on  18  magistrates  (13  judges  and  5  prosecutors)  and 
included 3 dismissals, 1 disciplinary transfer and 10 reductions in salaries and 4 warnings. 
Between  the  beginning  of  May  and  the  end  of  November  2008  DNA  brought  16  important  cases  to 
court, the defendants included 4 Members of Parliament, a former Minister of Agriculture, directors of 
national companies, police officers and prefects. Between 30 November 2008 and 21 January 2009, the 
DNA indicted e.g. a former Vice Prime Minister, a former Minister of Labour, three Members of the 
Parliament and a former Prime Minister.  

EN 

5 

   EN 

 
                                                 
allowed to be continued in two cases since July 2008, they were rejected in two other cases 
and deferred in three more cases. 

Instances of lengthy trials, leniency by courts and inconsistent jurisprudence in cases of high-
level corruption continue to be reported. 

The stability of the Romanian anti-corruption framework suffered several serious challenges 
during  the  second  half  of  last  year.  The  Parliament's  initiative  to  change  the  nomination 
procedure  of  senior  prosecutors  would  seem  to  openly  challenge  the  effectiveness  of  the 
system15. 

4.4. 

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

The  General  Prosecutor  adopted  a  set  of  measures  to  increase  the  effectiveness  of  local 
prosecutors'  offices  in  corruption  cases.  These  measures  included  an  analysis  of  relevant 
indictments issued between 2007 and 2008, a manual of best practice applicable to corruption 
investigations  and  local  strategies  for  combating  corruption  drafted  by  all  41  regional 
prosecution offices. 

Several  initiatives  by  civil  society  have  been  reported  such  as  integrity  screening  of 
candidates for national elections, regional anti-corruption action groups, recommendations for 
integrity tests in the health sector, and the monitoring of public universities for administrative 
and academic probity, good governance and sound financial management. In addition, several 
governmental projects to prevent corruption were carried out. 

The  Anti-Corruption  General  Directorate  (DGA)  of  the  Ministry  of  Administration  and 
Interior reported an increase of about 14% of corruption investigations within the ministry in 
the first eleven months compared to the whole of 2007. 

Efforts to achieve progress under the National Anti-corruption Strategy adopted last summer 
need  to  be  accelerated.  An  extension  of  the  competence  of  DGA  to  investigate  corruption 
cases within local public administration would appear contentious within the government and 
criticised by parts of the judiciary and civil society. 

A call-centre within the government has been set-up in line with the National Anti-Corruption 
Strategy 2008-2010. No further plans have been reported yet to establish a general hotline to 
signal corruption offences, able to guarantee independent and impartial follow-up of signals. 

15 

This legal initiative was declared unconstitutional on procedural grounds by the Constitutional Court. 

EN 

6 

   EN