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(2009) 401 final}
Date: 2009-07-22
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, 22.07.2009 
SEC(2009) 1073 

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(2009) 401 final} 

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TABLE OF CONTENTS 

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

• 

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

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

the ongoing needs assessment 

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

managerial shortcomings and human resources issues 

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

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

consultations and the impact it will have on the justice system 

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

2. 

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

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

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

resources to fulfil its mandate 

3. 

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

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

corruption cases 

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

4. 

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

•  Assess  the  results  of  the  recently-concluded  awareness-raising  campaigns  and,  if  necessary, 

propose follow-up activities that focus on the sectors with a high risk of corruption 

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

Note: 

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

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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. 

Jurisprudence 

The appeal in the interest of the law, determined by the High Court of Cassation and 
Justice  (HCCJ),  remains  the  main  tool  for  unifying  jurisprudence.  Between  August 
2008  and  May  2009  24  appeals  in  the  interest  of  the  law  were  lodged,  22  by  the 
General Prosecutor and 2 by the leading boards of Courts  of Appeal. By the end of 
April 2009 the HCCJ had admitted nine of these appeals and rejected one. Most of the 
decisions had not yet been motivated.  

The decisions of the HCCJ in the appeals in the interest of the law, once determined 
and  the  motivation  published,  are  binding  upon  all  courts.  It  therefore  remains  the 
most tangible tool in enforcing a coherent jurisprudence. However, the procedures are 
restrictive and time consuming. In addition, in many cases the HCCJ does not act as a 
proper Court of Cassation in charge of the interpretation of the law but as a third (and 
sometimes first) degree of jurisdiction. This does not allow the HCCJ to play fully the 
usual  role  of  a  Supreme  Court,  which  is  to  ensure  a  uniform  application  of  law. 
Appeals in the interest of the law are decided by the General assembly of the HCCJ 
composed of at least two-thirds of the 120 members of the  Court. Even if  decisions 
are given in relatively short time (2 months in average), the motivation process which 
takes  place  in  a  second  stage  is  long  (sometimes  more  than  1  year)  and  extremely 
cumbersome  as  all  participating  judges  have  to  agree  to  the  final  motivation.  The 
result might often be unclear motivation as a result of a difficult compromise process. 
This undermines the efficiency and transparency of this mechanism.  

Various other measures have also been taken to assist with the delivery of consistent 
jurisprudence.  These  include  various  trainings1  and  significant  steps  to  increase  the 
publication of court decisions. In February 2009 the Superior Council of Magistracy 
(SCM) signed an agreement with the Vrancea Tribunal to establish a national portal 
for  the  publication  of  all  court  decisions.  This  website  is  now  progressively  being 
populated  with  court  decisions.  This  will  ensure  the  full  jurisprudence  of  courts  are 
published and accessible to all increasing transparency in the act of justice.  

Progress is therefore being made but reports of contradictory jurisprudence, including 
within the HCCJ, continue. It is important that efforts are maintained and intensified. 
There will be opportunities in the draft new Procedure Codes to address some of the 
problems with the efficiency of the legal tools for the unification of jurisprudence. 

1 

The HCCJ has organised forty-four meetings in different Courts of Appeal to discuss different 
points of law where non-unitary practice is more prevalent. Eighteen seminars on non-unitary 
practice  were  also  organised  by  the  National  Institute  of  Magistracy,  with  further  seminars 
organised on a decentralised basis. 

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Staffing 

A  Human  Resources  Strategy  2008-2011  was  adopted  by  the  SCM  in  November 
2008. This detailed recruitment and training needs and measures to meet, as well as 
briefly  detailing  initiatives  underway  to  improve  the  efficiency  of  the  system. 
However, the human resourcing situation remains a concern and this Strategy failed to 
propose  emergency  solutions  such  as  the  temporary  reallocation  of  staff  to  tackle 
pressing  staff  shortfalls.  Nor  did  it  provide  a  clear  timetable  for  the  necessary 
reorganisation of courts and prosecutors’ offices. 

On  26  February  2009  the  SCM  supplemented  this  Strategy  with  additional  actions 
identifying  courts  and  prosecutors’  offices  with  acute  resourcing 
including 
difficulties,  reviewing  secondments  and  in  the  long  run  seeking  to  improve  the 
efficiency  of  courts  and  prosecutors’  offices  by  balancing  personnel  schemes  with 
workloads  and  transferring  administrative  tasks  to  auxiliary  personnel.  This 
acknowledgement of the need for both short term, temporary solutions but also longer 
term structural reform is to be welcomed. However, it is important these intentions are 
pursued with suitable vigour.  

So far some temporary measures have been taken. Sixty-five secondments have been 
cancelled,  and  a  working  group  has  been  created  to  analyse  personnel  schemes  and 
workloads.  This  working  group  has  recommended  the  redistribution  of  18  vacant 
judge  positions,  and  the  earmarking  of  38  further  positions  for  redistribution  when 
they  become  vacant.  Forty-six  vacant  prosecutor  positions  have  also  been  re-
distributed, and 25 positions transferred from military prosecutors’ offices to civilian 
prosecutors’ offices2. However, excluding the positions transferred from the military 
prosecutors’ offices, there has been no vertical redistribution of vacant positions and 
promotion contests have recently been held that have filled vacant positions at higher 
courts and  prosecutors offices that could have been redistributed. No needs analysis 
appears  to  have  taken  place  in  these  cases.  This  is  despite  significant  variations  in 
workload  with  significantly  higher  workloads  at  lower  (Courts  of  First  Instance  / 
Tribunal)  level  courts  and  prosecutors’  offices.  The  procedure  for  cancelling 
secondments  has  also  been  changed,  to  remove  the  possibility  from  the  seconding 
institution to request the return of their seconded judge or prosecutor.  

The system continues to face major challenges. Between 1 May 2008 and 1 May 2009 
287  judges  and  205  prosecutors  left  the  magistracy,  the  vast  majority  through 
retirement. More magistrates retired in the first five weeks of 2009 than the Human 
Resources  Strategy  envisaged  would  leave  in  the  entire  year.  There  remains  a 
significant  pool  of  magistrates  who  meet  the  retirement  conditions  and  could, 
theoretically, retire at any point.3 Efforts need to be made to limit the uncertainty this 
causes for human resourcing management. At the same time it necessitates significant 
recruitment merely to cover exits from the system. Between 1 May 2008 and 1 May 
2009 181 judges and 202 prosecutors entered the system, a net deficit of 106 judges 

2 

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14 positions were redistributed to Prosecutors’ Offices attached to Courts of First Instance and 
11 placed as a special reserve at the disposal of the General Prosecutor. 
As of May 2009 483 judges and 288 prosecutors complied with the requirements provided for 
by the law to be entitled to a retirement pension. It is unknown how many of these magistrates 
have obtained pension decisions. 

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and  3  prosecutors.  Figures  are  better  for  the  12  months  to  1  June  2009,  which  take 
into  account  the  distribution  of  recent  National  Institute  of  Magistracy  (NIM) 
graduates  and  successful  candidates  from  the  spring  2009  direct  entry  exam,  and 
therefore may be more representative of recent SCM efforts.4 However it is clear the 
system is in a state of flux5 and is struggling to cope with covering the total turnover.  

At  the  same  time  total  vacancy  levels  for  execution  positions  remain  high  in 
prosecutors’ offices (19%) and are high for leading positions in both courts (29%) and 
prosecutors’ offices (34%).6 The distribution of vacancies is also uneven with higher 
vacancy  levels  at  lower  level  courts  and  prosecutors’  offices,  despite  the  higher 
workload  and  there  are  acute  problems  in  certain  locations.7  More  fundamentally, 
workload  continues  to  vary  significantly  between  different  locations  irrespective  of 
vacancies  and  a  full  re-dimensioning  of  the personnel  scheme,  to  allocate  personnel 
according to workloads and enhance efficiency, has not yet taken place. Efforts must 
continue to be made to address these problems.  

The  initiative  to  transfer  administrative  tasks  to  auxiliary  personnel  remains  a  pilot. 
An EU funded project to improve court management and to introduce the concept of 
the court manager commenced in November 2008, with a pilot set to commence this 
summer. Consideration should be given to rationalising the territorial distribution of 
courts and prosecutors’ offices.8 In short, despite some small steps, significant work 
remains to be done to move towards a rational and realistic resourcing model.  

Public Ministry  

The plan to restructure the Public Ministry was completed in 2007. The 2008 Activity 
report of the Public Ministry was presented on 4 March 2009. The priorities for 2009 
include an enhanced focus upon combating corruption as well as other economic and 
financial crimes, assets recovery and the unification of jurisprudence of prosecutors’ 
offices.  Other  priorities  include  participating in discussions on  the  draft  new  Codes, 
filling  management  positions,  improving  managerial  activity  and  implementing  a 
coherent strategy for public communications. 

Further  restructuring  of  the  Public  Ministry  remains  necessary  and  continues  to  be 
actively  pursued  by  the  General  Prosecutor.  Workload  and  performance  varies 
significantly between prosecutors’ offices and vacancy levels remain high. However, 
these  efforts  are  hampered  by  the  fact  that  recruitment,  evaluation,  promotion, 

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7 
8 

Between  1  June  2008  and  1  June  2009  231  judges  and  282  prosecutors  were  recruited. 
Comparable figures for exits for the same time period are not available, but compared to the 
exit  figures  for  the  12  months  to  1  May  2009  these  figures  show  a  deficit  in  judges  of  56 
positions but an increase in 77 prosecutors.  
For the thirteen months from May 2008 to June 2009 (effectively covering two years output 
from the National Institute of Magistracy and spring direct entry exams) 690 new magistrates 
entered the system, effectively 10% of the total magistracy. 
In total as of the 1 May 2009 there were 316 (8%) vacant execution positions for judges and 
340 (19%) vacant execution positions for prosecutors. There were 187 (29%) vacant leading 
positions for judges and 168 (34%) vacant leading positions for prosecutors. 
The Prosecutors’ Offices in Bacau and Satu Mare have 75% of their positions vacant. 
There are currently twenty-eight prosecutors’ offices with only one or two prosecutors in post. 

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sanctioning and transfer of staff  are the final responsibilities of the SCM, who have 
not embraced the propositions made by the Public Ministry.  

The only redistribution of positions that took place was between prosecutors’ offices 
of the same level. This means that it has not been possible to tackle the inequalities in 
workload  between  prosecutors’  offices  of  different  levels.  Acute  problems  exist  at 
certain  offices.  The  General  Prosecutor  also  sought  the  support  of  the  Ministry  of 
Justice  to  extend  the  powers  of  the  General  Prosecutor  to  make  emergency 
detachments but the discussion was so far inconclusive. 

New Codes 

The Government has prioritised the finalisation of the four codes. The draft Criminal 
Code, Criminal Procedure Code and Civil Procedure Code were sent to Parliament on 
25 February. The Civil Code was sent to Parliament on 11 March. The Government 
opted  to  discuss  the  Codes  in  special  Parliamentary  commissions,  inviting  external 
experts and civil society. A number of other meetings were organised in parallel.  

Following  the  completion  of  the  work  of  the  special  Parliamentary  commissions  on 
the  two  substantive  codes,  which  addressed  a  number  of  concerns  (though  not  all) 
raised by practitioners and other stakeholders, the Government assumed responsibility 
before the Parliament for the new Criminal and Civil Codes on 22 June providing for 
an  expedited  adoption  procedure.  The  special  Parliamentary  commissions  will  now 
consider the accompanying Procedure Codes.  

The Ministry of Justice established a working group in April to undertake the impact 
assessment on all four codes and has asked for the World Bank’s assistance. The full 
impacts on the delivery of justice, and the financial and human resource implications 
are so far not known. The impact assessment will be especially significant as regards 
the  new  Procedure  Codes,  where  a  range  of  new  innovations  are  proposed.9  The 
adoption  of  new  Procedure  Codes  present  a  real  opportunity  to  improve  the 
functioning  of  the  justice  system.  It  will  be  crucially  important  that  what  is  finally 
adopted will, in practice, improve the efficiency of the justice system, ensure a more 
predictable  outcome,  shorten  the  length  of  trials  and  reduce  the  abuse  of  procedural 
rules  as  delaying  tactics.  A  real  assessment  of  the  implications  of  the  draft  new 
Procedural Codes is therefore required.  

Superior Council of Magistracy 

9 

One  such  innovation  is  a  new  legal  mechanism  aimed  to  assist  in  establishing  a  coherent 
jurisprudence. The new mechanism will allow a judge, ex officio or at the request of one of 
the parties, to ask the HCCJ to solve a legal issue relevant to the pending case where courts 
have previously delivered inconsistent jurisprudence. The HCCJ’s decision is binding on the 
judge who requested their ruling and also on other courts. The new procedure is intended to 
complement  the  existing  mechanism  for  lodging  appeals  in  the  interest  of  the  law,  but  is 
controversial  as  the  trial  will  be  suspended  whilst  the  High  Court  deliberates.  Nor  are  there 
limitations  on  the  numbers  of  times  this  provision  could  be  used  during  a  trial,  generating 
fears it will have an adverse impact on the celerity of court proceedings.  

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The  SCM  possesses  the  material  resources  necessary  to  perform  its  functions. 
Excluding the judicial inspection 92% of its positions are occupied and for 2009 it has 
received a budget increase of 6.9%. This contrasts to budget cuts elsewhere within the 
justice system.  

included 

The  SCM  has  taken  elementary  steps  towards  enhancing  its  transparency  and 
accountability.  This  has 
the  publication  of  various  SCM  related 
documentation  on  the  SCM  website,  and  periodic  meetings  with  representatives  of 
magistrates  associations  and  with  civil  society.  However,  concerns  continue  to  be 
raised  in  terms  of  their  transparency  and  accountability,  including  the  incomplete 
publications  of  agenda  items  and  resulting  decisions  (especially  in  disciplinary 
proceedings). This undermines transparency and generates concerns as to inconsistent 
decision making. Disquiet amongst the magistrates they represent has led to general 
assemblies  of  magistrates  around  the  country  opening  revocation  procedures  against 
some members of the SCM. In an apparent reply SCM members have become more 
vocal in voicing the concerns and complaints of the magistrates they represent leading 
them into institutional conflict with the executive. 

The  evaluation  system  introduced  by  the  SCM  to  assess  the  performance  of 
magistrates  appears  of  questionable  value.  As  of  6  May  2009  6258  magistrates 
(86.79%  of  the  total)  had  been  evaluated,  of  which  99,8%  were  awarded  gradings 
falling  within  the  highest,  “very  good”  band.  Magistrates  attribute  this  to  the 
structuring of the evaluation criteria but questions raised about the impartiality of the 
evaluation commissions have also not been addressed. 

inspectors  without  apparent  consideration  of 

In  light  of  concerns  raised  as  to  the  composition  of  the  judicial  inspection,  on  27 
November  2008  the  SCM  amended  the  rules  for  recruiting  inspectors  to  ensure  the 
selection of inspectors respected a geographical representation within the Inspection. 
However, at the end of 2008, following the renewal of the positions of a number of 
the  geographical 
the  seconded 
representation,  the  percentage  of  inspectors  from  Bucharest  courts  and  prosecutors’ 
offices  was  at  its  highest  level  since  2005.  On  26  February  2009  following  an 
evaluation the SCM decided to terminate the secondments of all the inspectors with 
effect from 1 May and to run a new competition to recruit inspectors. Twenty-eight 
inspectors were recruited as a result of interviews held on 7 and 8 April and a further 
recruitment  contest  is  underway  to  recruit  another  twenty-two  inspectors.  However, 
twenty-one  of  the  twenty-eight  inspectors  recruited  were  reappointments.  Despite  a 
regional allocation of positions the procedure continues to apparently favour recruits 
from Bucharest. Of the 28 inspectors appointed so far, 13 are from Bucharest courts 
and  prosecutors  offices  (with  10  –  all  reappointments  –  of  the  17  judges  from 
Bucharest  courts).  New  rules  specifically  prohibiting  inspectors  from  performing 
inspections of the courts or prosecutors’ offices where they previously worked were 
also introduced in November 2008 which may assist in reducing conflicts of interest.  

In 2008 the Judicial Inspection received 5205 notifications and also commenced 39 ex 
officio  investigations.10  In  the  first  four  months  of  2009  the  Judicial  Inspection 

10 

As  a  result  of  their  investigations  they  sent  230  cases  to  the  Discipline  Commissions  for 
follow-up  of  which  by  the  end  of  the  year  180  had  been  closed,  17  sent  to  the  Discipline 
Sections for Judges and Prosecutors and 33 were still pending. 

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received 1169 notifications and also commenced 12 ex officio investigations.11 As a 
result  of  their  work  the  Discipline  Sections  for  Judges  and  Prosecutors  applied  18 
sanctions  in  2008  and  dismissed  4  cases.  The  sanctions  applied  included  three 
dismissals  from  the  magistracy,  one  disciplinary  transfer,  ten  salary  reductions  and 
four  warnings.  In  the  first  five  months  of  2009  they  applied  9  sanctions  (including 
three  dismissals  and  three  salary  reductions)  and  dismissed  8  cases.  These  included 
sanctions applied in some high profile cases. Further recruitment to bring the judicial 
inspection  up  to  full  complement  is  clearly  required  and  to  allow  them  to  increase 
their  inspection  capacity.  Incidences  of  inconsistent  practice  within  the  inspection 
continue  to  be  reported  and  need  to  be  addressed.  Greater  transparency  is  also 
required to ensure confidence in the process from magistrates and citizens alike.  

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 

ANI  is  now  operational  and  has  developed  a  track  record  of  cases.  From  just  forty 
cases  under  investigation  in  June  2008,  as  of  22  May  301  investigations  had  been 
completed and 68 files had been referred to competent institutions for sanctions to be 
applied  or  for  criminal  investigation.12  Thirty  five  of  these  files  have  been  sent  to 
prosecutors’ offices (to investigate possible criminal offences); four files to courts (to 
confiscate  unjustified  wealth);  and  22  files  to  discipline  committees  of  various 
institutions (to apply disciplinary sanctions for incompatibilities). Preliminary checks 
are currently being carried out by ANI on 2279 persons and 1948 cases are currently 
being  processed.  ANI  has  also  applied  fines  to  2080  persons  for  late  or  non-
submission of asset and interest declarations.  

No information is available on the follow up of the cases referred to prosecutors or to 
disciplinary bodies. In the courts the majority of cases handled so far concern appeals 
to  fines  imposed  by  ANI  for  late  or  non-submission  of  declarations  of  assets  and 
interests.13  The  other  cases  –  more  fundamental  to  ANI’s  ultimate  objectives  – 
concern  applications  by  the  Agency  for  the  confiscation  of  unjustified  wealth  and 
appeals by claimants against the findings by ANI of incompatibility and conflicts of 
interests.  The  initial  results  achieved  by  ANI  in  the  appeals  against  their 
determinations  of  incompatibilities  and  conflicts  of  interest  are  promising14  but  in 
contrast  at  this  point  none  of  the  unjustified  wealth  cases  has  yet  reached  a  first 
decision  so  it  remains  untested  as  to  whether  the  confiscation  of  unjustified  wealth 

11 

12 

13 

14 

As a result of which they sent 92 cases to the Discipline Commissions, who have so far have 
closed 65 cases and sent 23 cases to the Discipline Sections for Judges and Prosecutors. 
These  include  files  on  two  current  /  former  Members  of  Parliament,  three  Presidents  /  Vice 
Presidents  of  County  Councils,  ten  mayors,  24  county  and  local  councillors,  three  police 
officers, one judge and the President of the Competition Council. 
Final  decisions  have  been  reached  in  150  of  the  850  cases,  with  the  initial  fine  being 
maintained  in 30  cases,  a reduced  fine  imposed  in  63  cases,  a warning  in 49  cases  and  in 8 
cases the penalty cancelled in its entirety. 
The  Courts  have  rejected  the  appeals  on  four  occasions  and  admitted  the  appeal  on  one 
occasion; three other files remain pending, and the appeal against a determination of a conflict 
of interest was rejected but is pending a second appeal. 

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will be constitutional. Eleven other exceptions of unconstitutionality have been raised; 
in ten cases the exceptions have been rejected by the Constitutional Court and in the 
eleventh case a decision is pending.  

In these circumstances it will only be possible to fully assess the actual outcomes of 
ANI’s  work  on  the  basis  of  a  track  record  of  resulting  confiscations  of  unjustified 
wealth,  indictments  by  prosecutors  or  disciplinary  sanctions  applied  by  discipline 
committees.  However,  ANI  has  established  a  track  record  of  cases,  including  a 
significant  number  of  cases  commenced  ex  officio.15  First  indications  also  suggest 
that  the  existence  of  ANI  is  beginning  to  have  a  preventive  effect,  encouraging  the 
submission of more accurate and timely declarations of assets and interests. 

Given the so far limited body of experience of the courts handling ANI’s cases, it also 
remains too early to take a definitive view on the adequacy of the legal framework for 
ensuring an effective delivery upon objectives for which ANI was created. There have 
been  no  further  changes  to  the  ANI  legal  framework  since  the  adoption  of  Law 
94/2008 on 14 April 200816.  

Questions remain as to whether the legal framework will allow ANI, and specifically 
ANI’s inspectors, to function independently and free from influence. In autumn 2008 
a  member  of  the  National  Integrity  Council,  attempted  to  interfere  in  an  ANI 
investigation.  ANI reported the attempted interference to the Council  and ultimately 
the  member  of  the  Council  resigned.  In  February  2009,  following  reports  made  by 
three  whistleblowers  concerning  the  President  of  ANI  and  the  Secretary  General  of 
ANI, the Council established a special disciplinary committee composed of five of its 
members to investigate the report. The committee has not yet completed its report. An 
independent  external  audit  will  also  shortly  be  undertaken  and  will  be  an  important 
opportunity  to  review  progress,  identify  vulnerabilities  and  to  strengthen  the 
functioning of the Agency. 

ANI now has 124 members of staff of the 200 provided for by law. The 124 personnel 
include  63  integrity  inspectors.  Overall  this  is  an  increase  by  24  on  the  number  of 
personnel  ANI  had  in  post  last  summer,  with  the  increase  mainly  accounted  for  by 
additional integrity inspectors recruited in the second half of 2008.  

ANI  was  provided  with  a  budget  for  2009  of  EUR  4.3  million.  In  April  this  was 
reduced by EUR 0.4 million. However as currently provided for the budget for 2009 
remains  significantly  higher  than  the  final  budget  ANI  received  for  2008  (which 
totalled EUR 3 million), reflecting the institutional development of the Agency. The 
budget  is  sufficient  for  the  operational  needs  of  the  Agency  and  to  provide  for  the 
procurement  of  a  data  processing  system.  The  procurement  of  this  system  has  been 
delayed  but  is  anticipated  to  be  completed  this  year.  The  system  will  assist  ANI  in 
developing  a  more  targeted  and  strategic  approach  to  identifying  vulnerable  sectors 
and cases for investigation, assisting in enhancing the efficiency of ANI’s work.  

15 

16 

Thirty  five of the  sixty  eight  files  finalised  and sent  to other  institutions  for  follow  up  were 
commenced by ANI ex officio. 
This  approved  Government  Emergency  Ordinance  Number  49/2007  amending  and 
supplementing the ANI law (Law 144/2007). 

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Financial  provision  is  also  available  for  training.  ANI  has  established  a  training 
strategy. Other institutional developments include the launching of ANI’s website, the 
drafting  of  guidelines  for  completion  of  asset  and  interest  declarations,  and  the 
conclusion  of  protocols  with  other  authorities.  A  strategy  for  the  Agency  was 
submitted to the National Integrity Council in June, having originally been envisaged 
for the beginning of the year. 

3. 

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

NON-PARTISAN 

INVESTIGATIONS 

DNA has maintained its good track record of investigations into high level corruption 
and has sent a significant number of high level cases to court. In the nine months (1 
August  2008  –  24  April  2009)  DNA  opened  176  criminal  investigations  and  issued 
115 indictments against 552 defendants. During the same period the courts ruled 49 
final  decisions  on  DNA  files  through  which  64  defendants  were  convicted.  There 
were  43  non-final  decisions,  involving  the  conviction  of  71  defendants.  Thirty  nine 
defendants were acquitted. However, twenty-four of these acquittals arose as a result 
of the decriminalisation of the relevant offences.  

The  cases  sent  to  trial  included  files  concerning  one  former  Prime  Minister,  one 
Minister, one former Minister and current Member of Parliament, two other Members 
of Parliament, two former Members of Parliament, eight Mayors and two Presidents 
of  County  Councils.  The  nature  and  number  of  the  files  sent  to  trial  by  DNA  is 
evidence of a continuing positive track record of non-partisan investigations into high 
level  corruption.  Many  investigations  are  commenced  following  complaints  by 
citizens  or  exofficio  indicating  public  trust  in  DNA  and  also  proactive  approach  to 
opening investigations. 

The opening of criminal investigations into Ministers or former Ministers requires the 
formal request (and therefore approval) of either the President or, if the individual is a 
Member of Parliament, of their Parliamentary chamber. In the course of the past 12 
months  the  Parliament  has,  at  the  request  of  prosecutors,  requested  the  opening  of 
investigations in four such corruption cases. However, the Parliamentary procedures 
have proved lengthy17. In two cases the opening of the investigations was refused. In 
one of these cases the Parliamentarian subsequently resigned allowing the opening of 
the criminal investigation (following an approval given by the President) but the other 
case (concerning a former Prime Minister) remains effectively blocked. In light of a 
Constitutional  Court  ruling  concerning  the  voting  procedure  used  in  rejecting  this 
case18,  the  General  Prosecutor  has  asked  Parliament  to  reconsider  their  refusal  to 
request  the  opening  of  the  criminal  investigation.  On  23  June  the  Parliament 

17 

18 

The cases where Parliament eventually approved the opening of criminal investigations took 
respectively 4 months, 7 months, 7 months and 10 months. 
The  Constitutional  Court  ruling  of  1  October  2008  found  unconstitutional  the  voting 
thresholds concerning such votes, with the existing requirement in the Chamber of Deputies 
requiring a two-thirds majority of all deputies and in Senate a simple majority of all senators 
considered  unconstitutional.  As  a  result  the  Chamber  of  Deputies  amended  their  regulations 
on 3 March 2009 and the Senate in May 2009. Both chambers now apply a simple majority of 
those present at such a vote.  

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concluded that this request was inadmissible. This decision has been challenged to the 
Constitutional Court  

The handling of high level corruption trials by the courts, and in particular the celerity 
of court procedures remains problematic. Of the 49 final decisions reached each case 
took  an  average  of  two  years  and  26  hearings.  However,  there  were  6  cases  dating 
from 2004 and one from 2003. These are cases that reached a final decision. As of the 
24  April  2009  there  were  462  further  DNA  cases  on  trial  in  various  stages  of 
completion.  It  is  striking  that  virtually  none  of  the  cases  of  highest  public  interest 
have  yet  reached  a  decision  in  first  instance,  let  alone  a  final  decision.19  As  of  25 
April  2009,  of  the  twenty-one  cases  against  current  and  former  members  of  the 
Government and of the Parliament sent to trial since 2006, only one of the cases has 
reached a decision in first instance. Seven of the cases were sent to court in 2006 and 
five in 2007. Some of these cases had been suspended on a number of occasions or 
were cases where parliamentary approval had to be sought retrospectively.  

High  level  trials  are  especially  lengthy  as  a  result  of  frequent  defence  attorneys` 
requests  for  delays.  Exceptions  of  unconstitutionality  are  frequently  raised,  as  are 
requests to transfer trials from one court to another, sometimes on multiple occasions. 
If admitted by the trial court – and they routinely are20 – trials are currently suspended 
whilst such issues are determined by the competent court21, even though suspensions 
are only currently mandatory when exceptions of unconstitutionality are admitted. A 
high  number  of  transfer  requests  appear  to  be  being  granted  by  the  High  Court  in 
corruption  cases  (despite  the  fact  that  for  all  cases  the  approval  rate  is  only  5%).  A 
draft law that would have removed the suspension of trials whilst the Constitutional 
Court deliberates on exceptions of unconstitutionality was rejected by the Senate on 4 
May  2009.  The  draft  law  had  been  widely  supported  by  the  judiciary  and  had  been 
presented previously by the Government as a significant reform measure to accelerate 
and  enhance  the  performance  of  the  judiciary.  It  would  have  cut  down  the  abusive 
usage of constitutional exceptions given 98% are currently rejected. A new draft law 
with the same objective adopted recently by the Government will give the opportunity 
to the Parliament to redress this issue.  

Sentencing  data  also  continues  to  raise  concerns  as  to  the  inconsistent  and  non-
dissuasive  penalties  applied  by  the  courts.  A  comprehensive  analysis  undertaken  by 
DNA  indicates  that  of  final  conviction  decisions  issued  in  2008,  71%  of  final 
convictions  were  with  suspension,  and  58%  of  convictions  were  at  the  minimum  or 
under the special minimum. The draft Criminal Code as sent to Parliament proposed 
significant  reductions  in  the  minimum  and  maximum  penalties,  including  for  a 
number  of  corruption  offences  so  as  to  render  the  overall  framework  for  penalties 

19 

20 

21 

Such cases include the case of a former Vice Prime Minister, indicted on 6 June 2006 and on 
trial  now  for  over  three  years  without  the  indictment  having  yet  been  read,  with  activity 
limited  to  the  consideration  of  procedural  issues.  The  DNA  investigation  in  this  case  lasted 
less than one year.  
Reportedly even in circumstances where the Constitutional Court has determined on this point 
and the exception need not be admitted. 
The High Court of Cassation and Justice for transfer requests and the Constitutional Court for 
constitutional  exceptions.  The  practice  on  challenges  to  the  legality  of  administrative 
decisions  is  inconsistent.  Where  admitted  the  trials  are  being  suspended  and  referred  to  an 
administrative court. 

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more  proportionate  and  coherent.  These  changes  would  also  have  had  the  effect  of 
reducing  the  statute  of  limitations,  meaning  in  practice  that  a  significant  number  of 
important  corruption  cases  would  have  been  lost.  Following  the  parliamentary 
discussions  the  penalties  were  raised,  reducing  these  problems,  though  they  remain 
lower than in the current Code.  

A new working group was established by the Ministry of Justice on 21 October 2008 
to elaborate a study into the penalties applied by the courts for high level corruption 
offences. The working group comprised of judges and prosecutors, analysed sentences 
applied by the courts in corruption cases from 2004-822. A bilateral project involving 
judges  from  the  UK  is  also  contributing  to  the  considerations.  Based  on  this  report, 
the  HCCJ  might  issue  a  ruling  setting  up  interpretative  guidance  for  sentencing  in 
corruption cases. 

Stability of the anti-corruption framework 

The  stability  of  the  anti-corruption  framework  remains  a  cause  for  concern.  During 
the  last  12  months  the  stability  of  the  framework  was  threatened  on  a  number  of 
occasions.  

In  September  2008  Parliament  revived  and  adopted  proposals  to  amend  the 
nomination  and  revocation  procedures  for  senior  prosecutor  positions.  The 
amendments were ultimately declared unconstitutional by the Constitutional Court on 
grounds  related  to  the  Parliamentary  procedure  followed  in  handling  the  draft  law, 
and the draft law was returned to Parliament where it has not been further discussed. 
However,  Parliament’s  attempt  to  change  the  nomination  and  revocation  procedures 
ran counter to the obligations Romania took at accession and appears a clear attempt 
to undermine the effectiveness of the system.  

In February 2009 the existing Chief Prosecutor, who had been fulfilling the functions 
on  Chief  Prosecutor  through  a  delegation  of  the  General  Prosecutor,  was  appointed 
for  a  second  mandate,  ensuring  continuity  in  the  management  of  the  DNA.  On  30 
June  this  stability  was  further  strengthened  by  reappointing  a  number  of  other 
members of DNA’s senior management team.  

Discussions  in  the  context  of  the  draft  Criminal  Code  prompted  concerns  that  Law 
78/2000  on  the  preventing,  discovering  and  sanctioning  corruption  acts  would  be 
repealed with parts (but not all) of the Law incorporated into the Criminal Code. In 
addition 
to 
decriminalisations, such a repeal would jeopardise the stability of the anti-corruption 
framework.  Ultimately  the  final  version  of  the  Code  upon  which  the  Government 
assumed responsibility does not touch upon provisions from Law 78/2000.  

to  a  new  wave  of  acquittals 

in  DNA  cases  due 

leading 

to 

22 

Their  findings  confirmed  non  dissuasive  penalties,  inappropriate  application  of  mitigating 
circumstances,  the  high  incidence  of  suspended  penalties,  inconsistent  sentencing  and 
inadequate motivations of the court decisions, as well as problems with training, specialisation 
and the absence of guidelines. Various recommendations have been made including legislative 
changes  to  limit  the  possibility  for  the  courts  to  apply  suspension  of  sentences  and  the 
preparation of guidelines. 

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4. 

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

After  a  year  of  implementation  of  the  National  Anti-Corruption  Strategy  for 
Vulnerable  Sectors  and  Local  Public  Administration  2008-10,  there  has  been  some 
progress on individual measures. However, a complete assessment of progress is not 
possible. Detailed and verifiable outputs are not available and actual tangible results 
are difficult to measure.  

This  Strategy  provides  an  opportunity  to  deliver  coherence  and  focus  to  efforts  to 
prevent  and  deter  corruption,  but  until  now  this  seems  to  have  been  an  opportunity 
that has not been exploited. The Steering Committee intended to oversee the Strategy 
and  its  action  plans,  and  to  make  amendments  has  only  met  twice  in  the  last  12 
months,  rather  than  the  quarterly  meetings  foreseen.  Nor  has  it  considered  any 
amendments  to  the  Strategy  despite  criticisms  from  civil  society  as  to  its  coherence 
and  synchronisation.  This  has  all  contributed  to  the  lack  of  a  clear  co-ordinated 
assessment  of  where  actions  have  reached  and  what  still  needs  to  be  done. 
Furthermore  within  the  Romanian  authorities  awareness  of  the  existence  of  the 
strategy is limited and there is confusion as to its scope. Reforms to the co-ordination 
arrangements being contemplated, including the creation of a technical working group 
to support the Steering Committee, are timely.  

At the level of individual authorities various measures are being taken. These include 
simplification  of  administrative  procedures,  and  measures  to  improve  transparency, 
integrity and to reduce opportunities for corruption. Initiatives underway include the 
phased national role out (not yet complete) of new more secure testing procedures for 
driving  licences,  as  well  as  the  ongoing  introduction  of  a  online  tool  to  track 
applications  with  the  National  Agency  for  Cadastre  and  Land  Registration.  Such 
measures are replicated in other sectors, accompanied by other preventative including 
fast-track premium price application procedures, limiting of face-to-face contact with 
citizens, and random assigning of work or rotation of personnel. A telephone line to 
report  problems  (including  corruption)  encountered  in  the  health  system  was 
established  by  the  Ministry  of  Health.  Despite  progress  in  individual  instances,  the 
nationwide implementation and effectiveness of these measures is unclear, especially 
at the local level.  

Three further awareness raising campaigns have been undertaken, all using EU funds. 
One  of  these  campaigns  was  broad-ranging  co-ordinated  by  the  Ministry  of  Justice, 
whilst  the  other  two,  run  by  the  Anti-Corruption  General  Directorate  (DGA)  of  the 
Ministry  of  Administration  and  Interior  (MAI),  focused  on  deterring  citizens  from 
giving  bribes.23  These  awareness  campaigns  have  been  supplemented  with  various 
other  initiatives,  largely  undertaken  by  the  DGA  who  have  used  various  media  to 
distribute  anti-corruption  messages.  In  support  of  the  results  achieved  from  these 
campaigns,  the  Romanian  authorities  point  to perception surveys they carried out in 
late 2008 illustrating an increased confidence in, and awareness of, the anti-corruption 

23 

The campaigns included road shows, conferences, and the production of various promotional 
materials.  The  Ministry  of  Justice  co-ordinated  campaign  involved  awareness  raising  road 
shows in twelve cities throughout Romania, involving 355 participants. 

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activities of the institutions involved in the preventing and countering of corruption. 
However, this survey and other independent surveys highlight continued high levels 
of distrust.24 Outside of the MAI there remain many other vulnerable sectors which do 
not appear to have been especially targeted by such campaigns and there appears little 
co-ordinated assessment of where further campaigns can maximise their impact. 

The  National  Integrity  Centre  has  continued  its  work,  including  the  running  of 
training courses and the holding of regional anti-corruption debates.25 As a result of 
these  debates  the  Centre  has  produced  a  number  of  recommendations  for 
consideration  by  the  Romanian  authorities  but  it  is  unclear  in  many  cases  what 
consideration  of  these  recommendations  has  taken  place.  Civil  society  has  also 
undertaken a range of useful studies and made recommendations. In higher education 
for example a recent study found 77% of students and 35% of teaching staff consider 
corruption in universities as high. The same study also revealed that only 50% of the 
universities surveyed complied with the public procurement law. The study identified 
problems  related  to  the  far  reaching  interpretation  of  university  autonomy  and 
ineffective  control  mechanisms.26  Such  studies  clearly  indicate  the  need  for  further 
steps and can usefully inform the institutions own strategies. 

In  terms  of  sanctioning  of  civil  servants,  data  collected  by  the  National  Agency  of 
Civil  Servants  reveals  that  during  2008  Disciplinary  Commissions  solved  837 
complaints,  imposing  375  sanctions27.  The  majority  of  these  sanctions  were  written 
warnings,  but  did  include  38  dismissals.  Forty  eight  cases  were  also  referred  for 
criminal investigation. Surprisingly few of the complaints were made by members of 
the  public  (just  15%)  and  only  9  were  made  by  whistleblowers.  Most  of  the 
complaints are made by the institutions management or by the head of the institution. 
These statistics are revealing of more general trends. Prosecutors receive surprisingly 
few  notifications  concerning  corruption  from  internal  control  and  audit  bodies  of 
public institutions and in some cases it would appear the independence of the control 
bodies and the infrequency, predictability and limited focus of controls is problematic. 
Prosecutors  also  report  receiving  surprisingly  few  notifications  from  the  Court  of 
Accounts.  Practical  implementation  and  awareness  of  whistleblower  policies 
(especially on their confidentiality) within institutions needs to be strengthened. 

Significant  efforts  have  been  made  to  strengthen  the  law  enforcement  and 
prosecutorial  response  to  corruption.  The  General  Prosecutor  has  adopted  a  set  of 
measures  to  increase  the  effectiveness  of  local  prosecutors’  offices  in  corruption 
cases. The measures include the assessment of performance in this field, production of 
a best practices manual for handling corruption investigations, twice yearly exchange 
of experience session with DNA prosecutors, and the devising of a special programme 
of  training  seminars  with  the  NIM.  Moreover,  the  centre  piece  of  these  measures  is 
the requirement upon each county prosecutors’ office to produce their own strategies 
for  combating  corruption,  taking  into  account  the  specifics  of  the  corruption 

24 

25 
26 

27 

Transparency International’s Global Corruption Barometer 2009 found that in Romania 69% 
of those surveyed considered anti-corruption measures taken by the authorities as inefficient.  
Between 1 June 2008 and 30 April 2009 twenty-four debates were held in different counties. 
Coalition for Clean Universities – Romanian Academic Society: University Integrity Contest 
(2009). 
This data do not distinguish between different types of offences. 

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phenomenon in their locality. The strategies aim to deliver a more proactive approach 
to combating petty corruption and to foster a closer and more dynamic co-operation 
with other law enforcement partners.  

The  Fraud  Investigation  Directorate  of  the  General  Inspectorate  of  the  Romanian 
Police has also prepared an anti-corruption measures programme setting out priority 
areas and risk factors as well as objectives and measures to enhance the institutional 
and  functional  capacity  of  the  Romanian  Police  units  involved  in  countering 
corruption. In December 2008 they finalised an action plan for tackling corruption in 
procurement in the health sector.  

It  remains  too  early  to  assess  fully  the  results  of  these  initiatives  to  strengthen  the 
combating of petty corruption but the police are reporting an increase in intelligence 
leads  and  notifications  to  prosecutors28,  whilst  there  has  been  an  increase  in 
indictments  made  for  corruption by local prosecutors’ offices.29 A number  of recent 
cases also indicate the emergence of a more proactive approach by certain offices and 
a  greater  focus  on  more  complex  cases  but  it  is  unclear  whether  this  is  a  more 
widespread  result  yet.30  However,  further  steps  are  necessary  to  strengthen  inter-
institutional co-operation, to ensure the supply of timely and good quality information 
to  prosecutors,  and  timely  feedback  to  the  Police.  The  introduction  of  common 
performance indicators is needed.  

DGA has continued its work. Between 1 August 2008 and the end of April 2009 DGA 
submitted  861  files  to  prosecutors,  who  commenced  criminal  investigations  in  216 
files  involving  606  persons  (258  of  whom  were  from  the  MAI),  in  which  DGA’s 
judicial police officers were delegated31. During the same period prosecutors indicted 
255 persons (68 persons were from the MAI of whom the majority (44) were from the 
Romanian  Police)  in  101  files  in  which  DGA  had  assisted.  During  the  same  period 
DGA  organised  1894  preventive  meetings  attended  by  26084  Ministry  personnel. 
They  also  prepared  a  guide  for  identifying  risks  and  vulnerabilities  to  corruption 
within  the  Ministry  and  undertook  an  analysis  of  the  risks.  An  action  plan  on 
preventing  corruption  within  Directorate  for  Driving  Licences  and  Vehicle 
Registrations  was  prepared.  By  a  recent  Ministerial  order  the  number  of  DGA  staff 
has been increased by 28% and the internal structure has been reorganised to, amongst 
other  motivations,  reflect  an  increased  desire  to  pursue  corruption  in  public 

28 

29 

30 

31 

In  total  between  1  August  2008  and  30  April  2009  the  Romanian  Police  detected  884  civil 
servants  working  in  central  and  local  public  administration  who  were  investigated  in  294 
criminal files for corruption. In the same period the Police forwarded to prosecutors 51 files 
concerning 396 people suspected of corruption in the education sector (a 296% increase) and 
96  criminal  files  concerning  521  persons  suspected  of  corruption  in  the  health  sector  (a 
74.25% increase). It is not known what percentage led to indictments. 
In  total  in  the  six  months  from  October  2008  –  March  2009  the  local  prosecutors’  offices 
solved  1141  cases  leading  to  121  indictments.  This  contrasts  to  115  indictments  in  the  first 
nine months of 2008. 
One example is an investigation by the Prosecutors’ Office attached to the Covasna Tribunal 
in  cooperation  with  the  DGA,  who  are  investigating  a  case  involving  19  police  agents 
concerning the fraudulent issuing of driving licences.  
During  the  same  period  DGA  received  841  notifications  from  institutions,  1445  written 
petitions  from  members  of  the  public  (of  which  69  became  criminal  complaints)  and  4156 
telephone calls over the TelVerde phone line (of which 12 became criminal complaints).  

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procurement. Corruption in public procurement is an important issue on which more 
needs to be done across the public sector.  

The  Department  for  the  Fight  against  Fraud  has  also  continued  its  administrative 
investigations  into  the  fraudulent  abuse  of  EU  funds.  Between  1  June  2008  and  15 
March 2009 they had under investigation 128 cases of which 80 cases were finalised 
and  in  49  cases  potential  frauds  identified  and  forwarded  to  the  competent 
prosecutors’ office.  

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