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
Date: 2010-07-20
Institutions: European Commission
Subjects: EU control, Romania, cooperation policy, corruption, exchange of information, judicial reform, rule of law

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EUROPEAN COMMISSION 

Brussels, 20.7.2010 
SEC(2010) 949 

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(2010) 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 

Codes 

After a standstill between October 2009 and January 2010, Parliamentary discussions 
on the Civil and Criminal Procedure Codes advanced and the Codes were adopted by 
Parliament on 22 June and promulgated by the President on 30 June. Representatives 
of  stakeholders  and  civil  society  were  invited  to  participate  in  Committee  sessions. 
The Commission's recommendation to adopt the Procedure Codes has therefore been 
achieved.  

The entering into force of the four new codes is foreseen for late 2011. Implementing 
legislation for all four codes, which would determine the necessary amendments to 
related legislation, has not yet been finalised. A draft of the implementing law for the 
Criminal  Code  was  published  for  public  consultation  on  21  June.  Drafts  of  the 
implementing laws for the Criminal Code and the Civil Code were approved by the 
Government on 7 July and will be sent to Parliament for debate. Implementing laws 
for  the Procedure Codes  will  now be  prepared following the adoption of the actual 
Procedure  Codes.  Further  work  is  therefore  required  to  fulfil  the  Commission 
recommendation to facilitate the swift entry into force of the four codes through the 
adoption of an implementing law that will render the legislative framework coherent.  

In  May  2009,  in  the  ambit  of  the  inter-institutional  working  group  set  up  by  the 
Ministry of Justice for the impact assessment of the new codes, a questionnaire was 
sent  to  Courts  and  Prosecutors’  Offices.  The  answers  submitted  by  219  courts  and 
the General Prosecutor's Office have been compiled and analysed. The results will be 
fed  into  the  overall  impact  assessment  of  the  new  Codes  to  be  carried  out  by 
consultants  financed  as  part  of  a  World  Bank  loan  to  support  judicial  reform. 
However,  selection  of  the  consultants  has  been  delayed  due  to  procurement  issues. 
Overall, progress on the Commission's recommendation in its report of July 22, 2009 
-  to  carry  out  a  thorough  assessment  of  the  impact  of  the  four  codes  on  the 
functioning  of  the  judicial  system  and  organisation  of  the  courts  and  prosecutors' 
offices  and  to  quantify  the  budgetary  means  needed  to  implement  them  –  has  been 
minimal. 

In  order  to  advance  the  implementation  of  some  important  reforms  included  in  the 
procedural  codes,  the  government  has  prepared  a  draft  of  the  so-called  "small 
reforms  law"  which  should  enter  Parliamentary  discussion  soon.  The  initiative 
advances  certain  elements  of  the  procedural  codes  which  target  the  acceleration  of 
the trials, such as the simplifying of the summoning procedures, restricting the right 
of  appeal  for  some  case  categories  and  creating  the  possibility  for  a  defendant  to 
admit  guilt  in  criminal  trials.  Other  elements  target  the  reduction  of  workload:  the 
competence of the High Court of Cassation and Justice (HCCJ) to try cases in first 
instance would be reduced so it would be able to focus on its role as a real cassation 
court,  while  introducing  the  principle  of  opportunity  would  reduce  the  caseload  of 
the prosecution.  

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Another initiative launched by the government is a consultation on a "Strategy for the 
development  of  Justice  as  a  Public  Service".  The  Strategy  addresses  many  issues 
including the implementation of the codes and improving the legislative, institutional 
and financial framework of the judiciary. Whilst the proposal for such a strategy is 
broadly welcomed, many professionals note that the value of the strategy cannot be 
judged without a detailed and time-bound action plan.  

Jurisprudence 

One of the main instruments of unification of jurisprudence remained the appeal in 
the interest of the law. The previous backlog of appeals has been eliminated by the 
HCCJ.  Following  a  recommendation  by  the  Commission,  a  streamlined  procedure, 
according  to  which  the  relevant  section  of  the  court  prepares  a  report  on  the  case 
before having the plenum decide on it, is generally applicable to all sections now. 

The draft Small Reforms Law foresees a substantial change of the existing practice 
for  appeals  in  the  interest  of  the  law.  The  scope  of  persons  with  legal  standing  to 
initiate the procedure will be extended to the Ombudsman and the leading boards of 
the HCCJ. In addition, competence to determine these appeals is transferred from the 
joint sections of the HCCJ (requiring at least two-thirds of all HCCJ judges to attend) 
to  a  special  25  judge  panel.  "Rapporteur  judges"  will  draft  a  report  on  the  case 
mentioning  the  different  possible  solutions  of  the  legal  matter,  specialist  opinions, 
relevant  jurisprudence  and  doctrine.  Deadlines  for  trying  the  appeal  and  publishing 
the  decision  and  its  reasoning  will  be  introduced.  These  suggestions  follow  the 
Commission's recommendation to streamline the procedure for appeals in the interest 
of the law and ensure at the same time that expertise in all relevant areas of law is 
provided.  

While  the  future  changes  are  welcome,  it  should  be  recalled  that  the  appeal  in  the 
interest  of  the  law  is  not  the  exclusive  method  of  unification  and  it  remedies 
conflicting jurisprudence only once such legal practice already exists. Once the Civil 
Procedure Code is in force, the High Court will act increasingly as a Cassation Court 
judging  appeals  on  points  of  law.  The  court  will  also  be  in  charge  of  unifying 
jurisprudence in areas of law which presently are not under its jurisdiction - such as 
family or bankruptcy law. Consideration should therefore be given already under the 
current  legal  framework  to  the  internal  organisation  and  working  methods  of  the 
HCCJ,  in  order  to  ensure  it  will  be  in  a  position  to  fulfil  its  future  work.  In  this 
regard, the project developed by the HCCJ and supported by the Superior Council of 
Magistracy (SCM) in the ambit of a Transition Facility project1 could serve as a good 
starting  point  to  improve  the  working  methods  in  order  to  achieve  a  proactive  and 
comprehensive system to promote a stable and unified jurisprudence.  

The  publication  of  a  selection  of  relevant  court  decisions  by  the  HCCJ  and  other 
courts has continued, with various hard copy cassation collections produced as well 
as some decisions being published online.2 However, significant delays have arisen 
in populating a national portal (Jurindex) for the publication of the full motivations 
of all court decisions. Recent commitments by the SCM of renewed support for the 
further  development  of  this  portal,  including  financial  and  logistical  support,  are 

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RO/2007-IB/JH/01 
From January 2010, the HCCJ’s quarterly cassation bulletin is being published on a monthly basis. 

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timely. The national portal is a key project to ensure that the full jurisprudence and 
motivated  decisions  of  courts  are  published  and  accessible  to  all,  increasing 
transparency in the act of justice. 

Staffing 

Human resourcing continues to remain a major challenge. The Commission’s report 
of 22 July 2009, called upon the SCM to adopt a flexible priority-driven approach to 
human resourcing.  

The  Human  Resources  Strategy  adopted  in  2008  was  premised  on  a  significantly 
lower  number  of  retirements  than  materialised.  This  exacerbated  already  existing 
resourcing  problems.  Since  summer  2009  the  SCM  has  reacted  to  these  trends  by 
increasing  the  intake  of  magistrates.  As  a  result  in  the  year  to  June  2009  more 
magistrates were recruited than left the magistracy which resulted in a small fall in 
the  number  of  vacancies.  However,  this  increased  recruitment  may  have  come  at  a 
cost.  The  majority  of  the  new  recruits are now entering the  magistracy through the 
extraordinary direct entry exam for legal professionals with five years experience, as 
opposed to graduating from the National Institute of Magistracy (NIM). Whilst this 
may have been necessary to address rapidly the large numbers of exits and address 
widespread  vacancies  including  at  courts  and  prosecutors’  offices  with  the  highest 
workloads, these candidates do not receive the same training as the candidates who 
graduate from the NIM. This has raised questions as to the quality and preparedness 
of the direct entrants in particular as, contrary  to  the  new  magistrates  coming  from 
the NIM, they are not subjected to the same capacity exam. With a view to a medium 
term  solution,  the  SCM  increased  the  intake  to  NIM  for  2009  but  even  this  rise 
would  appear  insufficient  to  minimise  use  of  the  extraordinary  direct  entry 
competitions. More substantial reflections are required on increasing capacity at the 
NIM as well as training and recruitment arrangements.  

To  accompany  other  emergency  measures,  the  Commission’s  recommendation 
advocated transferring vacant positions to where they are needed most. In short, this 
means to start correlating the personnel scheme with workloads in order to allow new 
recruits  or  transferred  or  promoted  personnel  to  be  directed  towards  courts  and 
prosecutors’  offices  with  the  highest  workload.  Whilst  the  SCM  has  continued  to 
redistribute  the  vacant  positions  identified  in  spring  2009,  no  additional  positions 
have  been  identified  and  any  further  identification  of  positions  for  horizontal 
redistribution  has  been  postponed,  despite  suitable  vacant  positions  for  reallocation 
exist.  In  addition,  as  in  previous  periods,  vacancies  have  been  filled  in  the  last  12 
months  at  courts  and  prosecutors’  offices  with  low  workload  that  could  have  been 
redistributed.  As  in  2009,  the  possibility  of  undertaking  meaningful  vertical 
redistribution  has  been  quashed  by  the  organisation  of  promotion  contests  to  fill 
vacant positions at higher courts and prosecutors offices. The number of magistrates 
seconded  to  other  institutions  has  reduced  slightly  since  last  summer  and  the  vast 
majority  of  the  remaining  secondments  are  to  institutions  connected  to  the  judicial 
system.  

Looking to the medium and long term, the Commission’s recommendation of 22 July 
called  upon  the  Romanian  authorities  to  progress  structural  reforms,  such  as 
transferring  administrative  tasks  to  auxiliary  personnel,  and  to  re-dimension  the 
personnel  scheme  to  allocate  personnel  according  to  workloads  and  therefore  to 

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maximise efficiency of existing personnel. Since last summer the SCM has identified 
the attributions to be transferred and the required qualifications and competences of 
the  auxiliary  personnel  who  will  take  on  this  work,  and  prepared  the  necessary 
legislative  amendments.  The  SCM  has  also  proposed  legislative  amendments  to 
introduce court managers. In addition, an EU-financed technical assistance project is 
assisting  the  SCM  in  reviewing  its  human  resources  strategy  and  management.  In 
December  2009  the  SCM  began  piloting  a  provisional  system  which  imposes  an 
optimal, maximum workload per judge.  

Work  was  also  commenced  to  identify  courts  and  prosecutors  offices  with  a  small 
workload,3 for possible closure and reallocation of their resources. However, from an 
initial  41  courts  and  prosecutors’  offices,  the  working  group  has  now  narrowed  its 
considerations  to  nine  locations  which  do  not  operate  at  all  and  six  other  locations 
with  small  workloads,  although  final  recommendations  will  be  made  on  a  case  by 
case basis. The project also considers altering territorial circumscriptions with a view 
to  ensuring  viable  workloads  in  those  locations  not  earmarked  for  closure  but 
currently with a disproportionately low workload per judge or prosecutor. Five courts 
and  associated  prosecutors’  offices  are  foreseen  to  receive  an  increased  territorial 
circumscription. 

In  accordance  with  a  recommendation  by  the  Commission  and  in  the  context  of 
implementing  the  new  codes,  the  geographic  distribution  of  personnel  must  be 
reviewed  as  a  priority.  It  is  striking  that  at  courts  of  the  same  tier  of  jurisdiction 
workload per judge or prosecutor can vary dramatically irrespective of vacancies. 

In addition, the possibility of a certain level of specialisation of judges, both at the 
level  of  the  HCCJ  and  at  lower  courts  should  be  examined,  keeping  in  mind  the 
importance of preserving effective random case distribution. This would at the same 
time  increase  the  speed  of  resolution  of  certain  types  of  cases  and  improve  the 
general  consistency  of  jurisprudence.  Proposals  from  the  HCCJ  in  this  regard  have 
been endorsed by the SCM and transmitted to the Ministry of Justice.  

Public Ministry 

The General Prosecutor was reappointed for a new term of office in October 2009. 
Steps  taken  to  continue  the  reform  of  the  Public  Ministry  since  July  2009  include 
implementation  of  an  integrated  financial  management  system.  Measures  are  being 
taken to strengthen asset recovery. These include the preparation of a manual of best 
practice and introducing asset recovery as an indicator in evaluating performance of 
prosecution offices. Work is also underway to assess possibilities to hire specialists 
in  local  prosecutors’  offices,  as  well  as  transferring  administrative  control  of  the 
judicial  police  from  the  Ministry  of  Administration  and  Interior  to  the  Public 
Ministry.  A  more  fundamental  reform  of  the  Public  Ministry  including  the 
redistribution of positions and the closure of offices remains necessary. The General 
Prosecutor  continued  to  make  proposals  to  the  Ministry  of  Justice  and  the  SCM  to 
address these deficiencies.  

Superior Council of Magistracy 

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Below 2000 files per annum. 

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The  Commission’s  report  of  22  July  2009  called  upon  the  SCM  to  strengthen  its 
transparency  and  accountability,  specifically  in  relation  to  human  resourcing 
decisions  and  disciplinary  measures  but  also  more  generally  to  ensure  all  SCM 
decisions are published in a clear and accessible format.  

Since  last  summer  the  SCM  has  rectified  a  gap  in  terms  of  the  publication  of  their 
decisions, by ensuring all disciplinary decisions including their motivations will now 
be published online at the point of issue. To accompany online publication the SCM 
has  also  published  a  jurisprudence  collection  of  their  disciplinary  decisions  2006-
2009.  Complete  agendas  for  meetings  are  now  routinely  published,  although 
accompanying documents are often not available.  

Concerns continue to be raised as to the transparency and accountability of the SCM 
in  certain  fields  of  its  competence.  Particular  concerns  have  been  raised  as  to  the 
thoroughness, objectivity and transparency of the interviews the SCM undertakes to 
select judges for promotion to the HCCJ. This was one of the specific issues raised in 
a petition for “Integrity and Dignity” signed by hundreds of magistrates in March this 
year, which arose in the light of controversial appointments to the HCCJ and in light 
of  a  major  corruption  investigation  by  the  National  Anti-Corruption  Directorate 
(DNA) involving HCCJ judges. The absence of a substantive written motivation of 
the  promotion  decisions  to  the  HCCJ  taken  by  the  SCM,  contrasted  to  the  more 
thorough  exposition  of  the  merits  contained  in  the  written  motivations  of 
secondments  and  transfer  decisions,  has  raised  questions  amongst  other  observers. 
The SCM is modifying its guidance for handling these promotion contests including 
revising  the  selection  criteria  candidates  are  to  be  assessed  against  during  the 
interview.  However,  magistrates’  representatives  have  proposed  more  far  reaching 
measures to ensure a more objective and transparent procedure. 

Concerns  have  also been raised  as to the apparent  passive  approach of the SCM in 
handling  alleged  breaches  of  discipline  or  of  the  deontological  code,  as  well  as 
towards corruption within the magistracy. Statistics show that between 1 July 2009 
and 1 March 2010 the Judicial Inspection received 2727 notifications or complaints. 
Although  the  vast  majority  did  not  concern  disciplinary  issues,  the  volume  of 
complaints  created  a  substantial  workload  for  the  inspectorate  in  terms  of  effective 
filtering and follow-up. During the same period the Judicial Inspection submitted 253 
cases to the discipline commissions and commenced 36 ex officio investigations. As 
a  result,  the  Sections  for  Judges  and  Prosecutors  of  the  SCM  imposed  5  sanctions 
upon judges and 2 sanctions upon prosecutors. The sanctions included one exclusion 
from the magistracy, five reductions of salary and one warning. The average duration 
of  the  proceedings  from  point  of  notification  of  the  judicial  inspection  to  final 
decision by the Sections was under 5 months for prosecutors and under 6 months for 
judges. However, there are also disciplinary decisions pending since 2008.  

Disciplinary  decisions  reached  by  the  Sections  of  Judges  and  Prosecutors  are 
appealable to the High Court, including by the Judicial Inspection.4 For the calendar 
year  2009,  14  disciplinary  decisions  reached  by  the  Sections  of  Judges  and 
Prosecutors were appealed, of which 5 decisions were upheld, 4 were overturned and 
6 were pending as of April 2010. The 4 decisions which were overturned related to 

4 

The Judicial Inspection has reportedly begun to exercise this power in cases where they do not agree 
with decision of the Sections of Judges or Prosecutors. 

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cases  in  which  exclusions  from  the  magistracy  were  imposed  due  to  gross 
negligence.  Questions  have  been  raised  as  to  the  adequacy  of  the  range  of 
disciplinary penalties that can be applied, and the consistency and proportionality of 
application.  The  SCM  is  considering  the  possibility  of  proposing  categorisation  of 
disciplinary  offences  with  appropriate  penalties  to  address  consistency  and 
proportionality. An important issue as to the preventive effect and enforceability of 
results  of  disciplinary  proceedings  is  the  possibility  of  the  magistrate  to  be  granted 
retirement  which  puts  an  end  to  any  disciplinary  investigation.  To  grant  such 
retirement  requests  appears  standard  practice  of  the  SCM.5  The  SCM  has  also 
granted  retirement  to  suspended  magistrates  who  are  under  arrest  or  have  been 
indicted for criminal offences, including alleged corruption in office.  

Separate to disciplinary investigations, the Judicial Inspection has continued various 
planned  inspections.  These  inspections  included  country-wide  assessments  of 
thematic issues (such as the random allocation of cases) as well as location specific 
controls  on  managerial  efficiency,  each  producing  recommendations  either  for 
particular courts or prosecutors’ offices or for general application.6  

New  guidelines  for  the  Judicial  Inspection  have  been  produced  with  a  view  to 
encouraging  consistent  working  methods  by  inspectors  and  periodic  meetings  to 
discuss practices held. This remains an important objective with continued reports of 
inconsistent practices and jurisprudence. Recruitment of judicial inspectors according 
to new rules adopted in summer 2009 has continued The procedure for recruitment 
has been the subject of a legal challenge by the General Prosecutor who questioned 
its  legality  and  expressed  concern  that  it  is  insufficiently  objective  and  transparent 
which as a result compromises the independence of inspectors. There is no activity-
specific,  periodic  evaluation  of  the  performance  of  the  Judicial  Inspection  or  its 
inspectors. The capacity of the inspectorate to fulfil its functions, with 31 posts filled 
and 20 vacancies can be considered as insufficient. 

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. 

Legal Framework 

On 14 April 2010 the Constitutional Court found substantial and significant parts of 
Law  144/2007,  the  Law  on  the  National  Integrity  Agency,  unconstitutional.7  In 
considering an exception raised in one of the Agency’s first major confiscation trials, 
a 3.5 million euro confiscation case concerning a former Member of Parliament, the 
Court found that: 

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7 

During 2009 20 investigations were closed on this basis, as the disciplinary investigation lost its subject. 
A thematic control of random allocation of files undertaken in 2009 identified various irregularities of 
practices but reportedly did not find deliberate manipulations, though it is acknowledged that the ability 
to detect deliberate manipulations from the control undertaken was limited. Proposals arose to amend 
the court computer system and the internal regulations of the court. These proposals are still pending.  
Chapters  1  (Articles  1-9  –  General  Provisions)  the  entire  Chapter  6  (Articles  45-50  on  Verification 
Procedures) and Articles 11(e), (f), (g), 12(2), 42 (2), (3), (4), 14(c), (d), (e ) and (f) .  

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•  the  power  of  the  National  Integrity  Agency  (ANI)  to  verify  assets,  conflicts  of 
interest  and  incompatibilities  of  holders  of  public  office,  and  to  issue 
administrative  documents  detailing  their  findings,  breached  the  Constitutional 
separation  of  powers  in  granting  ANI  what  the  Court  considered  to  be  quasi-
judicial powers and that certain activities carried out by ANI’s integrity inspectors 
had jurisdictional nature;  

•  the  power  of  ANI  to  ask  courts  to  confirm  and  confiscate  significant  unjustified 
differences  between  the  income  and  acquired  assets  of  a  public  official  or 
dignitary  breached  the  Constitutional  presumption  of,  and  prohibition  on 
confiscating, legally acquired property, as well as the presumption of innocence; 

•  the  obligation  to  publish  asset  and  interest  declarations  on  the  webpage  of  their 
employer and their transmission to ANI for publication on ANI’s webpage was a 
breach of the Constitutional duty upon public authorities to respect and protect the 
intimate, family and private lives of persons.  

The decision of the Court was not unanimous and in a dissenting opinion three of the 
nine  Court  judges  expressed  their  disagreement  with  the  majority  decision, 
suggesting that neither ANI’s powers of verification and finding, nor the confiscation 
of  significant  unjustified  differences  between  income  and  assets  breached  the 
Constitution.8  

In reaction to the Constitutional Court’s judgment the Government submitted a draft 
law  amending  the  ANI  law  to  Parliament,  which  was  debated  and  adopted  on  12 
May.  This  new  law  was  widely  criticised  by  practitioners  and  civil  society.  On  2 
June the President therefore decided not to promulgate the new law and returned the 
law to Parliament for re-examination. However, on 30 June the Parliament adopted 
the  new  law  once  again  with  only  minor  improvements.  The  control  of  assets,  a 
fundamental  element  of  ANI’s  original  competences,  has  been  lost.  ANI  is  now 
deprived of the ability it previously possessed to send cases of significant unjustified 
differences  between  income  and  accumulated  assets  to  court  for  determination  and 
sanctioning. In its place, ANI will only be able to refer such cases to prosecutors or 
tax  authorities,  neither  of  whom  is  legally  competent  to  sanction  unjustified 
discrepancies arising from the verification of assets and income. In the past, in cases 
where  no  criminal  offence  could  be  proven  or  assets  seized  could  not  be  clearly 
linked  to  an  offence  for  which  a  conviction  was  achieved,  ANI  had  played  an 
important complementary role to law enforcement in providing for the follow up of 
significant  discrepancies  between  the  income  and  accumulated  assets  of  public 
officials  and  seeking  confiscation  through  its  procedures.  The  majority  of  ANI’s 
confiscation cases so far derive from such co-operation. An important deterrent and 
sanction for corruption has therefore been lost.  

8 

The  three  judges’  separate  opinion  concluded  that  ANI  did  not  have  quasi-judicial  /  jurisdictional 
powers,  given  ANI  did  not  deliver  judgments,  but  undertook  research  and  investigation  and  notifies 
courts or other competent institutions in order to take steps provided by the law. As regards confiscation 
of unjustified assets, the separate opinion concluded that the ANI law did not reverse the presumption 
of licit acquisition of property (as it was for ANI to present their findings as regards the discrepancies 
between income and assets) nor the presumption of innocence. They also felt confiscation constitutional 
as the Constitution allowed the legislator to institute the forfeiture in all cases of illicitly acquired assets. 

EN 

9 

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As  a  result,  under  the  new  law  follow-up  or  sanctioning  of  discrepancies  between 
assets  and  income  identified,  and  therefore  meaningful  control  of  dignitaries’  and 
officials’  accumulation  of  wealth  whilst  in  public  office  will  no  longer  occur. 
Amendments  which  sought  to  keep  alive  the  possibility  of  sanctioning  such 
unjustified  discrepancies,  utilising  arrangements  in  another  law  allowing  for  the 
confiscation  of  unjustified  assets,  which  the  Constitutional  Court  has  found 
constitutional  as  recently  as  2007,  were  rejected  by  the  Romanian  Senate  on  30 
June.9 

The new law as adopted by Parliament also includes a host of other amendments that 
weaken  the  effectiveness  of  ANI’s  legal  framework  in  areas  unrelated  to  the 
Constitutional Court decision: establishing a short prescription period of one year for 
completion  of  ANI’s  verifications  after  a  public  official  leaves  office;  limitation  of 
the period for which the public asset and interest declaration will remain accessible 
online  and  limitation  on  the  period  for  which  a  state  of  incompatibility  can  be 
sanctioned;  reducing  the  content  of  the  actual  declaration  forms  undermining  their 
effectiveness  as  a  tool  for  transparency  or  investigation;  and  significantly  reducing 
fines for persons or institutions who do not supply information requested by ANI. 

Following  the  publication  of  the  Constitutional  Court  decision  on  5  May,  ANI 
suspended all ongoing verification activities.  

Institutional Developments and track-record 

Up until the Constitutional Court decision, ANI had been continuing to consolidate 
its  institutional  base.  ANI  had  taken  steps  to  implement  the  detailed,  technical 
recommendations supplied in the first annual independent external audit undertaken 
in late 2009 and was now beginning to implement the recommendations arising from 
the second annual independent external audit undertaken earlier this year. Significant 
improvements  to  the  software  systems  were  made  increasing  ANI’s  potential 
efficiency.  

Consolidation was also the focus as regards staffing. The number of ANI personnel 
had  reduced  slightly  since  summer  2009,  with  113  employees  in  post  as  of  May 
2010, of which 55 are integrity inspectors. However, the majority of vacant positions 
(74  of  the  87)  are  not  budgeted  (including  the  position  of  Vice  President)  and  the 
focus of ANI’s management had therefore been on enhancing efficiency and results 
with  the  existing  personnel:  introduction  of  new  software  systems,  appropriate 
training under externally financed projects (though opportunities for comprehensive 
ongoing  training  arrangements,  underpinned  by  a  learning  needs  analysis,  were 
constrained  by  budgetary  issues).  ANI  had  also  prepared  and  adopted  a  Code  of 
Ethics and Professional Conduct for its personnel. The National Integrity Council’s 
(CNI)  Evaluation  Commission  concluded  its  inquiries  into  allegations  made  in 
February  2009  against  ANI’s  senior  management.  In  a  report  issued  in  February 
2010  the  Evaluation  Commission  concluded  that  the  allegations  against  the  ANI 
President were in each instance either unfounded or not confirmed. A similar finding 
had  been  reached  in  October  2009  against  the  ANI  Secretary  General  and  in 
February  2010  the  ANI  President  was  also  exonerated  in  a  separate  report  into  his 

9 

Law  115/1996  on  declaring  and  control  of  the  wealth  of  dignitaries,  magistrates,  civil  servants  and 
certain persons with management positions  

EN 

10 

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relations with the media.10 Ambiguities within the law on ANI regarding the role of 
the  National  Integrity  Council  (CNI)  have  come  to  surface  since  July  2009.  As  a 
result, the CNI has not been able to act as an interface between ANI and politics and 
was  not  able  to  shield  the  agency  from  political  accusations  and  promote  its 
development.  

Consolidation in terms of the institution had also been mirrored in ANI’s operational 
track  record,  in  line  with  the  recommendation  contained  within  the  Commission’s 
report of 22 July 2009. From 301 completed investigations as of 22 May 2009, by 1 
May  2010  ANI  had  completed  1576  investigations  (since  the  commencement  of 
activities by the Agency). From 68 files sent to competent institutions for sanctions 
to be applied or for criminal investigation, as of 1 May 2010 ANI had sent 291 files 
to competent institutions. One hundred and seventy five of these files have been sent 
to prosecutors’ offices (to investigate possible criminal offences – 169 cases for false 
statements  and  6  cases  for  conflicts  of  interest);  six  files  to  courts  (to  confiscate 
unjustified  wealth);  and  110  files  to  disciplinary  committees  (to  apply  disciplinary 
sanctions for incompatibilities or conflicts of interest).11 As of 1 May investigations 
were underway in 3534 files.  

Further  to  a  recommendation  by  the  Commission,  ANI  had  also  taken  steps  to 
monitor the timely follow up by judicial and disciplinary bodies to cases they submit. 
Case management processes within ANI were reviewed and strengthened, to ensure 
regular  and  routine  follow  up  by  ANI  inspectors  to  files  forwarded  to  other 
competent institutions. As of 1 May 2010: 

•  2 findings of unjustified wealth had been confirmed by the Courts in first instance 
decisions and the confiscation of significant assets ordered, though both decisions 
were  being  appealed.12  Four  further  confiscation  cases  were  pending  before  the 
courts for a first instance decision 

•  1 finding of an administrative conflict of interest had been irrevocably confirmed 
by the High Court of Cassation and Justice, and a second case was pending a final 
decision  of  the  High  Court.  In  the  first  case  ANI  had  commenced  legal 
proceedings  to  obtain  the  annulment  of  legal  and  administrative  documents 
concluded  by  the  official  in  question,  as  well  as  to  seek  the  recovery  of  any 
prejudice  

10 

11 

12 

In  the  light  of  the  experience  of  the  Evaluation  Commission,  the  CNI  amended  the  Evaluation 
Commission’s  regulations  such  that  members  of  the  Evaluation  Commission  who  do  not  attend  its 
working  meetings  without  justified  reasons  are  excluded  from  the  Evaluation  Commission.  Such 
amendments were adopted with a view to optimising the efficiency of the functioning of the Evaluation 
Commission  and  addressing  criticisms  as  to  the  duration  of  the  inquiries.  Questions  remain  as  to 
whether the Evaluation Commission can transparently, promptly and thoroughly investigate allegations, 
ensuring wrong-doing is sanctioned and that closure is brought to unfounded allegations, or whether it 
creates potential for political interference. 
Of  which between August 2009  and  May  2010  ANI  sent 131 files  to  prosecutors’ offices, 90 files  to 
disciplinary committees and 2 files to courts for the confiscation of unjustified wealth. 
In the first case the Court ordered the confiscation of 458,805EUR, 1580USD and 29,345RON. In the 
second case the court ordered the confiscation of 9,750EUR and 913,591RON. 

EN 

11 

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•  5513  findings  of  incompatibility  (from  110)  had  become  final  and  thirteen 

disciplinary solutions had been ordered as a result by disciplinary bodies14  

•  Prosecutors had issued one indictment (concerning a city mayor) arising from an 
ANI  notification  and  have  initiated  criminal  pursuit  in  three  further  cases  which 
are  ongoing.  Fifteen  further  cases  have  been  closed  by  prosecutors  after  the 
initiation  of  the  criminal  pursuit  –  although  in  ten  of  these  cases  prosecutors 
acknowledged the existence of the offence, but decided to apply an administrative 
fine  –  and  forty-four  cases  were  closed  by  prosecutors  without  initiating  the 
criminal pursuit.15 One hundred and twelve further cases are pending, the majority 
concerning false statements, but with five cases of alleged conflicts of interest in 
breach of the Criminal Code.  

In  terms  of  follow  up,  questions  remained  as  to  the  promptitude  of  action  by 
disciplinary  bodies  and  regarding  the  leniency  of  certain  disciplinary  sanctions 
applied. Questions also remained as to the celerity of proceedings before prosecutors. 
Given  that  ANI’s  administrative  verifications  are  suspended  until  the  prosecutors’ 
investigations  are  complete,  delays  in  resolving  criminal  files  have  a  consequential 
effect  on  the  efficiency  of  administrative  verifications.16  However,  all  these 
developments  towards  ensuring  a  fully  operational  and  effective  ANI  –  and  their 
track  record  –  are  now  placed  in  question  by  inadequacies  in  the  new  legal 
framework. 

3. 

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

The  National  Anti-corruption  Directorate  (DNA)  has  maintained  its  stable  and 
convincing  track  record  of  investigations  into  allegations  of  high-level  corruption 
and a significant number of cases were sent to court. In the nine months between 1 
June 2009 and 1 March 2010, DNA opened 233 investigations and has sent to trial 
126  cases  regarding  414  defendants.  In  the  same  period  at  court  level  53  cases 
resulted  in  final  convictions  against  89  defendants,  while  74  conviction  decisions 
against  144  defendants  were  also  reached  but  are  subject  to  appeal.  Sustaining  the 

13 

14 

15 

16 

These include final determinations of incompatibility against two mayors, one vice mayor, seven county 
counsellors and seventeen local counsellors, as well as against the former President of the Competition 
Council. 
These  varied  from  revocations  from  public  office  (2  cases)  and  the  termination  of  county/local 
counsellors’  mandates  (4  cases),  to  the  reduction  in  salary  (1  case)  and  verbal  warnings  (3  cases).  A 
further  29  cases  are  pending  with  disciplinary  bodies,  3  cases  are  on  trial  in  the  courts  despite  being 
appealed  outside  of  the  legal  term  and  in  a  further  9  cases  the  relevant  official  has  already  vacated 
public office. 
Figures supplied by ANI. Comparative figures supplied by the Public Ministry cover the period January 
2008 – February 2010. Of 146 notifications received from ANI, prosecutors had issued solutions in 40 
cases.  In  8  cases  prosecutors  had  imposed  administrative  fines,  5  further  cases  were  closed  with  non 
indictment  solutions  after  the  start  of  the  formal  criminal  investigation,  and  in  27  further  cases 
prosecutors issued non-indictment solutions without commencing the formal criminal investigation. In 
one of  the  cases  where  an  administrative  fine  was  imposed,  this was  successfully  challenged  by ANI 
and the defendant is now on trial. 
In one case, concerning a Member of Parliament, it took the case prosecutor 520 days from the point of 
ANI’s notification to decide not to initiate the criminal pursuit for alleged false statements. 

EN 

12 

   EN 

                                                 
solidity  of  the  cases  prepared  by  DNA,  during  the  same  period  only  8  cases 
concerning  27  defendants  resulted  in  acquittals,  one  of  which,  concerning  four 
defendants, was the result of the decriminalisation of the relevant offence. The cases 
sent  to  court  include  files  concerning  one  former  minister  and  current  deputy,  one 
deputy, one judge and 7 mayors. The nature and number of the cases support further 
the evidence of the effectiveness of the specialized anticorruption prosecution. 

In  line  with  the  Commission's  recommendation,  the  efficiency  of  the  judiciary 
system  in  trials  of  high-level  corruption  was  monitored  during  the  last  twelve 
months.  Out  of  the  53  cases  resulting  in  final  convictions,  16  cases  resulted  in 
penalties of prison sentences executable in detention with an average sentence of 2 
years and 9 months. All other sentences were suspended. Overall on court level, the 
trend  appears  to  be  the  issuing  of  more  severe  and  a  fewer  number  of  suspended 
sentences  at  first  instance  level,  however,  this  tendency  is  not  yet  reflected  at  the 
level  of  final  judgements,  where  the  tendency  to  issue  lower  and/or  suspended 
penalties  based  on  mitigating  circumstances  remains.  However,  the  overall  number 
of decisions issued by courts shows a significant increase.17 

The  celerity  of  the  trial  phase  of  high-level  corruption  cases  remains  problematic. 
The  53  trials  resulting  in  final  conviction  decisions  during  the  period  under  review 
took  an  average  of  two  and  a  half  years  and  25  hearings  to  reach  this  stage. 
Comparative data of the previous reporting period shows that, while the number of 
hearings per trial stayed approximately the same, the duration of trials has gown by 
one quarter.18 In six of the cases resulting in final convictions, the indictments date 
back to 2006, four cases were indicted in 2005, five in 2004 and two even back in 
2003. In the same cases, the investigations by DNA took on average 7 months. As of 
5 May, 2010, out of the 30 cases of current and former members of Parliament and 
Government sent to trial since 2005 only two have reached a final decision and only 
five  further  cases  have  reached  a  first  instance  decision  with  the  vast  majority  of 
cases still therefore yet to reach any decision in court.19  

The cooperation between DNA and other relevant institutions is considered effective. 
Out of the 1063 files registered by the DNA, 765 result from notifications from other 
prosecution  services  including  the  Directorate  for  Organised  Crime  and  Terrorism 
(DIICOT),  151  from  the  Anti-corruption  General  Directorate  (DGA),  and  the  rest 
divided  between  other  authorities.  A  significant  number  of  DNA  files  sent  to  court 
result of ex-officio investigations.  

Since  July  2009,  the  Parliament  swiftly  approved  the  opening  of  criminal 
investigations in one case of a Parliamentarian who is a former Minister. The request 
the  same 
was  approved 

in  4  days.  However,  another  request  concerning 

17 
18 
19 

131 with final conviction decisions in 2009, compared to 97 convicted persons in 2008 
26 hearings per trial and 2 years duration on average between 1 August 2008 and 24 April 2009 
These include a case against a former Vice Prime Minister who was indicted in June 2006 and remains 
on trial without a decision having yet been reached in first instance. This trial has been suspended twice 
following  the  defence  invoking  exceptions  of  unconstitutionality.  The  DNA  investigation  in  this  case 
lasted less than one year from the point of notification to indictment. Other cases include a trial against 
a  former  Member  of  Parliament,  indicted  in  July  2006  and  still  on  trial  pending  a  decision  in  first 
instance. The DNA investigation in this case also lasted less than one year. Further cases include the 
trial  of  a  former  State  Secretary,  indicted  in  September  2006,  and  the  trial  of  a  current  Member  of 
Parliament, indicted in July 2007. These cases are also pending decisions in first instance.  

EN 

13 

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Parliamentarian is pending since 16 February and a separate search request, lodged 
on  10  February,  concerning  this  Parliamentarian  is  also  still  pending  Parliament’s 
approval.  One  case  concerning  a  former  prime  minister  is  now  considered 
permanently  blocked  by  Parliament’s  refusal  to  allow  the  opening  of  criminal 
investigations. Overall, the Commission's recommendation of July 2009, to apply the 
procedure  for  allowing  criminal  investigations  of  Parliamentarians  who  are  former 
and current members of government in a swift and uniform manner has only partially 
been fulfilled. 

In a significant corruption case concerning a Member of Parliament investigated by 
the DNA, in March 2010 the Senate promptly approved the request of the Minister of 
Justice  (at  the  instigation  of  DNA)  for  the  preventive  arrest.  A  HCCJ  judge  also 
stood accused of complicity in the trafficking in influence. In addition to Parliament 
approving the arrest of the Parliamentarian, the SCM also approved the arrest of the 
Judge.  The  Parliamentarian,  the  Judge  and  the  two  businessmen  were  therefore 
placed under preventive detention and subsequently were indicted on 21 May. While 
the Parliamentarian remains in preventive arrest, the Judge and the two businessmen 
were  released  after  four  days  under  arrest,  a  decision  motivated  by  the  HCCJ  as 
arising from low social danger.  

During the period under review, exceptions of unconstitutionality continued to delay 
all 14 high-level cases pending at the HCCJ. At the same time, a legal amendment to 
remove  the  suspensive  effect  of  unconstitutionality  exceptions  remains  pending  in 
Parliament.  The  Commission's  recommendation  in  this  respect  is  therefore  still  not 
addressed. 

Though the majority of the recommendations in the report of a joint working group 
on the individualisation of penalties for corruption offences are being addressed, only 
two of those actions can be considered to be accomplished.  

•  Court  meetings  on  non-unitary  practice  have  reportedly  discussed  penalty 

individualisation and execution in corruption cases;  

•  The  new  Criminal  Procedure  Code  provides  that  corruption  cases  are  tried  at 

Tribunal level as first instance;  

Other recommendations are being addressed: 

•  The National Institute of the Magistracy (NIM) has scheduled 16 training actions 
to  address  the  recommendation  to  increase  the  number  of  in-service  training 
courses on fighting corruption;  

•  Proposals to allow the criminal court to resolve illegality exceptions and to limit 
the  application  of  suspended  sentences  are  included  in  the  draft  Small  Reforms 
Law,  although  concerns  have  been  raised  as  to  whether  the  specific  approach 
adopted to limiting suspended sentences in the draft law is the most appropriate.  

Guidelines  on  penalties  for  corruption  offences  drafted  by  the  HCCJ  at  the  end  of 
2009 are still in their draft form, they have not been substantially amended based on 
the  feedback  from  practitioners  and  are  still  considered  not  sufficiently  operational 
by magistrates. As an interesting parallel development, a group of magistrates at the 

EN 

14 

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Bucharest  Court  of  Appeal  drafted  a  set  of  alternative  guidelines  for  a  range  of 
offences, including specific guidelines for certain corruption offences, which propose 
a  host  of  detailed  criteria  for  establishing  appropriate,  proportionate  and 
individualised  penalties.  These  guidelines  are  reportedly  being  used  for  training  by 
several institutions and indicate possibilities for revising the HCCJ’s guidelines.  

Whilst  Romania  has  taken  some  steps,  further  work  is  required  to  meet  the 
recommendation  of  the  Commission  to  provide  an  appropriate  follow  up  to  the 
recommendations  of  the  working  group  on  the  individualisation  of  penalties  for 
corruption. 

In  the  last  twelve  months,  the  anti-corruption  legal  framework  –  Law  78/2000  on 
preventing,  discovering  and  sanctioning  corruption  acts  as  well  as  the  Government 
Emergency  Ordinance  43/2002  on  the  National  Anti-Corruption  Directorate  – 
remained  intact  as  separate  pieces  of  criminal  legislation  and  the  status  and 
competences  of  DNA  are  unchanged.  In  addition,  as  all  exceptions  of 
unconstitutionality  related  to  DNA's  basic  legislation  have  been  rejected  by  the 
Constitutional  Court  to  date,  its  constitutionality  can  be  considered  confirmed 
through  constant  jurisprudence.  It  is  imperative  that  the  efficiency  of  the 
investigation and prosecution of high-level corruption is safeguarded and the stability 
of  the  legal  (specifically  Law  78/2000  and  G.E.O.  43/2002)  and  institutional  anti-
corruption  framework  maintained  in  the  context  of  the  implementation  of  the  new 
Criminal and Criminal Procedure Codes. 

4. 

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

The Romanian authorities have taken  some steps to strengthen co-ordination of the 
National  Anti-Corruption  Strategy  for  Vulnerable  Sectors  and  for  Local  Public 
Administration,  reacting  to  the  recommendation  in  the  Commission’s  report  of  22 
July  2009.  The  Strategy  is  now  in  its  final  months.  The  Monitoring  Committee 
tasked  with  overseeing  the  Strategy  has  met  more  frequently;  and  an  expert  level 
working group has been established to support the Committee’s work.20 The working 
group has prepared a new methodology for reporting developments under the Action 
Plans. Sub-working groups in certain sectors have also reviewed their existing action 
plans;  revised  action  plans  concerning  the  Ministry  of  Administration  and  Interior 
(MAI),  Ministry  of  Health  and  for  local  public  administration  should  be  adopted 
shortly.  Revisions  are  predominantly  minor,  eliminating  measures  no  longer 
considered  appropriate,  readjusting  deadlines  to  reflect  delays  and  clarifying 
implementing  steps  and  responsible  bodies.  However,  despite  a  few  additional 
measures  proposed,  the  enhanced  co-ordination  does  not  so  far  appear  to  have 
developed  to  the  stage  of  delivering  better  identification  of  vulnerable  activities  or 
corruption risks, nor mitigating actions.  

Overall, individual actions have been completed but a full assessment of progress is 
still  missing  and  real  impacts  remain  unclear.  This  makes  it  difficult  to  determine 

20 

The  Monitoring  Committee  has  met  four  times  since  July  2009,  compared  to  twice  in  the  preceding 
twelve months. The expert level working group has met five times since its creation in August 2009. 

EN 

15 

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where  efforts  should  be  focused  in  the  future  and  what  measures  are  actually 
working.  

Some  efforts  have  been  taken  to  step  up  prevention  measures  in  certain  sectors,  a 
first step towards responding to the Commission’s recommendation of 22 July 2009. 
Within  the  MAI,  the  Anti-Corruption  General  Directorate  (DGA)  has  developed  a 
new methodology which provides a framework for corruption risk identification and 
assessment.  As  a  first  stage  in  applying  this  methodology  officials  in  each  MAI 
structure  have  been  designated  and  are  being  trained.  DGA  has  also  delivered  two 
awareness raising campaigns with EU funds which appear to have delivered positive 
results.  In  addition,  DGA  continued  preventive  trainings  for  MAI  personnel, 
including  targeting  personnel  in  high-risk  positions  (such  as  the  traffic  police); 
signed  a  co-operation  protocol  with  the  National  Agency  for  Regulating  and 
Monitoring  Public  Procurement  to  provide  training  for  MAI  personnel  involved  in 
public  procurement;  and  continued  disseminating  anti-corruption  material  to  MAI 
personnel and prepared audio-visual material for transmission in the media. 

In  the  wider  public  administration,  under  the  auspices  of  another  EU  project,  the 
Central Unit of Public Administration Reform (CUPAR) of the MAI has developed a 
guide  on  simplification  of  procedures  and  facilitated  external  expertise  to  identify 
procedures  for  simplification  in  the  National  Agency  of  Cadastre  and  Land 
Registration,  the  Romanian  Agency  for  Immigration,  the  SAPARD  Agency  and  in 
the urbanism field. Some of their recommendations have already been implemented, 
but  others  require  legislation  or  follow  up  is  outstanding.  Work  to  prepare  an 
Administrative Code is ongoing.  

Various  tools  to  promote  transparency  and  integrity  in  public  administration  have 
been developed, piloted and are now being promoted. Whether these tools are used 
by  public  institutions  and  their  impact  can  however  not  be  assessed.  Work  to 
strengthen the legislative and institutional framework governing ethics counsellors is 
ongoing.  The  National  Agency  of  Civil  Servants  (NACS)  has  also  continued  its 
efforts  to  monitor  the  implementation  of  ethical  standards  and  disciplinary 
procedures  in  public  institutions.  The  information  it  was  able  to  collect  for  2009, 
indicates  similar  results  to  2008  in  terms  of  disciplinary  cases  resolved,  sanctions 
imposed  and  referrals  to  criminal  investigation  authorities.21  It  is  estimated  that 
breaches of conduct are higher than those actually recorded. Few complaints (11%) 
are received by disciplinary bodies from members of the public. Work is progressing 
to  establish  a  single,  corruption  reporting  telephone  hotline  but  it  is  not  yet 
operational.  Within  institutions  potentially  more  use  could  also  be  made  of  whistle 
blowing  but  few  steps  appear  to  have  been  taken  to  strengthen  practical 
implementation and awareness of whistle blowing policies.22  

21 

22 

According  to  data  obtained  by  NACS  during  2009  disciplinary  bodies  solved  1072  complaints, 
imposing 571sanctions. The majority of sanctions were written warnings, but there were 51 dismissals. 
However,  reportedly  80%  of  sanctions  were  cancelled  by  the  courts.  Disciplinary  bodies  made 
notifications  to  criminal  investigation bodies  concerning  50  civil  servants  on  suspicions  ranging  from 
fraud to receiving undue benefits and abuse of office. 
Transparency International Romania’s National Corruption Report 2009 concluded implementation of 
the  legal  provisions  regarding  the  protection  of  whistleblowers  is  “greatly  deficient”,  with  poor 
harmonisation of internal regulations and inadequate information to personnel. 

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Aside from the MAI, information on and preventive measures in other risk areas is 
more  limited  but  some  measures  are  being  taken.  The  Ministry  of  Education  in 
particular,  having  identified  a  systemic  weakness  arising  from  specific  corruption 
cases,  is  procuring  an  information  system  which  should  assist  with  reducing 
corruption  in  the  diploma  system.  However,  overall  across  public  institutions 
prevention  measures  still  need  to  be  intensified..  One  recent  civil  society  report 
identified major deficiencies in public administration, vulnerabilities to corruption in 
the  education  system  and  the  need  for  public  policies  to  prevent  corruption  in  the 
health system.23 Another recent survey on corruption in the health system found that 
91% of respondents consider  corruption within the  health system as a critical issue 
which  directly  impacts  on  patients.  Two  thirds  of  respondents  said  that  they  have 
offered  money  to  medical  personnel,  with  81%  saying  that  they  believe  such 
payments played an extremely influential role in how they were treated.24  

To  assist  with  stepping  up  efforts  to  prevent  corruption,  the  MAI  has  secured 
financing  for  the  National  Integrity  Centre  which  has  begun  to  consolidate  and 
intensify  its  contribution  to  the  anti-corruption  efforts.  Its  network  of  county  anti-
corruption  action  groups  offer  the  possibility  for  practitioners  at  the  local  level  to 
identify risks and possible mitigating actions, which in turn the Centre can scrutinise 
and  develop  into  policy  proposals  for  consideration  by  competent  institutions.  A 
number of proposals have already been identified and are under consideration by the 
Centre.  These  include  measures  to  reduce  corruption  in  the  traffic  police,  public 
procurement,  health  and  fiscal  sectors.  Six  proposals  have  been  endorsed  by 
implemented.  Other  civil  society 
competent 
organisations could also be useful partners for institutions at central and local level in 
identifying, taking forward and monitoring the impact of prevention initiatives.25  

institutions  and  will  now  be 

Steps  by  the  General  Prosecutor  to  strengthen  the  approach  of  county  prosecution 
offices  to  combating  petty  and  medium-level  corruption  seem  to  be  beginning  to 
deliver results. In response to the Commission’s recommendation, implementation of 
the  county  prosecution  strategies  has  continued.  Indications  are  that  the  number  of 
investigations  commenced  ex-officio 
investigations  has 
indicating  a  more  pro-active  approach  of 
these 
investigations  are  predominantly  focused  on  the  priority  sectors  identified  by  the 
strategies. In parallel to an increased number of investigations, more indictments are 
resulting.26  Furthermore,  more  of  these  indictments  concern  bribe  taking  and 

the  prosecution,  and 

increased, 

including 

that 

23 
24 
25 

26 

Transparency International Romania’s National Corruption Report 2009 
Association for Implementing Democracy study undertaken by IMAS in April 2010. 
For example NACS has recently commenced a project with a non-governmental organisation seeking to 
create  partnerships  between  local  authorities  and  civil  society  in  identifying  anti-corruption  measures 
and monitoring implementation of anti-corruption policies. 
In  the  second  half  of  2009  Prosecutors’  Offices  attached  to  Tribunals  and  Courts  of  Appeal  issued 
indictments in 101 cases compared to 56 in the first half of 2009. Twenty two of the indictments in the 
second half of 2009 followed investigations commenced ex officio, compared to 13 in the first half of 
2009  (or  5  in  the  first  eight  months  of  2008).  Approximately  half  of  all  investigations  opened  are 
commenced  ex  officio  and  there  was  a  45%  increase  in  the  number  of  investigations  commenced  ex 
officio in the second half of 2009 compared to the first half of 2009. In the first three months of 2010 
Prosecutors’ Offices attached to Tribunals and Courts of Appeal indicted 67 people. This contrasts to 44 
persons during the first three months of 2009. Data on the number of cases indicted so far in 2010 is not 
yet available, as well as further data on the nature of cases. When this is available it will be possible to 
assess whether the trends observed in 2009 have continued 

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corruption-related  offences,  suggesting  a  greater  emphasis  on  fighting  corruption 
among public officials as well as a focus on more complex investigations.27 It is too 
soon, however, to see whether these trends continue and for these trends to translate 
into final court decisions.28 

To  date,  over  90%  of  corruption  indictments  by  Prosecutors’  Offices  attached  to 
Tribunals and Courts of Appeal result from information supplied by or worked with 
the judicial police of DGA. Recent results by DGA indicate an intensification of their 
work. The high proportion of indictments which involve their participation indicates 
the  effectiveness  of  co-operation  between  DGA  and  prosecutors,  and  appears  to 
reflect DGA’s specialisation in terms of personnel and logistics and exclusive focus 
on  corruption.  In  certain  instances  prosecutors  have  also  delegated  DGA  judicial 
police  officers  to  work  on  corruption  investigations  outside  of  DGA’s  institutional 
competence.  This  flexible  approach  has  reportedly  been  confirmed  by  the  courts 
when challenged. The General Prosecutor and DGA have jointly taken steps to build 
upon  the  existing  co-operation,  holding  a  series  of  regional  meetings  involving 
prosecutors  and  DGA  police  officers  to  discuss  their  co-operation,  how  it  can  be 
enhanced and to exchange best practices through presentations of recent cases. This 
should  assist  with  unifying  practices.  A  protocol  is  envisaged,  which  will  clarify 
arrangements  for  co-operation,  including  notification  procedures  and  information 
exchange,  joint  assessment  indicators  and  joint  training.  A  best  practices  guide  on 
deployment of undercover investigators is also foreseen.  

However, these results also indicate the need to strengthen co-operation between the 
Fraud  Investigation  Service  of  the  Romanian  Police  and  prosecutors  in  corruption 
cases.  Statistical  data  indicates  the  Fraud  Investigation  Service  supplies  the 
prosecution  with  significant  volumes  of  information  on  suspected  corruption 
offences, but it would appear not to be leading to indictments.29 Work to strengthen 
co-operation could therefore focus on identifying how this co-operation can lead to 
more tangible outcomes, possibly by focusing on the quality of information supplied 
by  the  police,  feedback  from  prosecutors  to  focus  information  gathering,  common 
performance indicators focused on indictments and convictions, or on specialisation 
and  resourcing  of  investigative  capacity.  Prosecutors  would  like  to  see  the  Fraud 
Investigation  Service  designate  specialised  police  officers  to  work  exclusively  on 
corruption cases.  

Public  procurement  in  Romania  shows  a  number  of  weaknesses  in  practice  and 
institutional  structure  which  lead  to  serious  shortcomings  in  the  protection  against 

27 

28 

29 

In the first three months of 2010, 21indictments concerned bribe taking (compared to 6 during the first 
three  months  of  2009).  Twenty-two  indictments  concerned  corruption  related  offences  prescribed  by 
Law  78/2000  (compared  to  17  during  the  first  three  months  of  2009).  In  the  second  half  of  2009 
indictments  were  issued  in  nine  complex  cases  compared  to  three  complex  cases  in  the  first  half  of 
2009. 
Although twelve final court decisions – all convictions – were reported during 2009 concerning petty 
and  medium  level  corruption  cases  prosecuted  by  the  Prosecutors’  Offices  attached  to  Tribunals  and 
Courts of Appeal. 
Between  1  August  2009  and  1  May  2010  the  Romanian  Police  passed  to  prosecution  offices 
information  on  4269  suspected  corruption  offences  involving  3244  persons.  Of  these  reports  748 
concerned  bribe  taking,  1349  bribe giving, 431  traffic  in  influence,  and 1639 other  corruption related 
offences.  These  files  concern  acts  of  corruption  in  public  administration,  health,  transportation, 
agriculture and forestry, education and labour and social protection.  

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conflict of interest, fraud, corruption and other serious irregularities. In the context of 
the implementation of EU funds, services of the Commission have pointed to those 
weaknesses  on  several  occasions  and  transmitted  a  number  of  concrete  suggestions 
for corrective action. The Commission has mapped the main current shortcomings in 
Romania as follows: 

The  protection  against  conflict  of  interest  in  the  law  is  not  sufficiently  effective. 
Several laws address different aspects of conflicts of interest and are not sufficiently 
harmonised.  This  leads  to  confusion  regarding  the  attribution  of  responsibilities 
among competent  authorities. The  procurement law  contains rules to  avoid conflict 
of interest situations,30 but until recently this was limited to persons taking direct part 
in the process of verification and evaluation of the tenders, while in practice, indirect 
influence is also a significant risk. Amendments to the public procurement legislation 
have improved the legal protection against conflicts of interest in June 201031. It is 
important  that  the  most  frequent  cases  of  conflict  of  interest  which  are  related  to 
business  interests  of  local  politicians  and  their  family  are  addressed  in  an  effective 
way in the implementation of the law. The Administrative Transparency Law32 could 
in principle apply to cases not covered by the scope of the Public Procurement Law. 
However  public  procurement  authorities,  such  as  the  competent  authority  for 
complaints, the National Council for Solving Complaints (CNSC), can only operate 
on  the  basis  of  the  legal  framework  for  public  procurement.  Apart  from  remedy 
measures  applicable  during  the  procurement  procedure  such  as  fines  or  a  re-
evaluation of  offers, sanctions  can be  either based on the Criminal Code, or on the 
Transparency Law, which provides for administrative sanctions such as interdiction 
of the right to fulfil public duties. However, in practice the application of these laws 
shows  several  shortcomings  due  to  varying  definitions  of  conflict  of  interest 
depending on the status of the person concerned. The Transparency Law introduces 
for instance stricter rules regarding conflict of interest for ordinary civil servants than 
for high public officials such as ministers or mayors.  

Competent  authorities  demonstrate  only  limited  activity  aimed  at  preventing  and 
detecting conflict of interest.33 The Commission could only establish very few cases 
where conflicts of interest were detected by administrative authorities and sanctions 
were taken. 

Cooperation among administrative authorities in order to design effective prevention 
strategies and control procedures is missing. Furthermore, as few cases are detected, 
few signals are transmitted to the judicial authorities. 

In  addition  to  these  specific  shortcomings,  a  number  of  more  general  weaknesses 
have  been  noted:  Legislation  in  the  area of  public  procurement  has  been  subject  to 
frequent  amendments  and  too  little  assistance  is  provided  to  contracting  authorities 

30 
31 
32 

33 

Chapter II Section 8 of GEO 34/2006 
Government Emergency Ordnance 76/2010 adopted on 30 June 2010. 
Law 161/2003 regarding some measures for ensuring transparency in the fulfilment of public duties and 
in the business sector, and for preventing and sanctioning corruption 
In  2009,  the  National  Authority  for  Regulating  and  Monitoring  Public  Procurement  (ANRMAP), 
identified 6 violations of public procurement linked to conflict of interest through complaints or through 
ex-officio  investigations.  In  2010,  ANRMAP  had  no  such  cases.  It  received  some  signals  concerning 
conflict of interests (links between decision making persons and winners of bids) but these signals were 
not falling under Ordinance 34/2006. CNSC had only 5 cases out of the 9700 solved in 2009. 

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for  the  correct  application  of  the  existing  legal  framework.  Too  often,  these  legal 
amendments  aim  to  address  in  a  symptomatic  way  weaknesses  of  the  public 
procurement  process  without  engaging  a  comprehensive  strategic  analysis  of 
underlying  causes.  Together  with  insufficient  expertise  and  capacity  of  local 
contracting authorities, the result is often insecurity how laws and procedures should 
be applied. This insecurity results in turn in a high number of complaints and works 
against an effective prevention of irregularities. 

This  picture  of  insufficient  and  complex  legislation  on  conflict  of  interest  together 
with  a  low  sensitivity  towards  risks  among  administrative  authorities  and  a  weak 
track  record  in  prevention  and  control  contrasts  sharply  with  the  important  risk  of 
conflict  of  interest  in  public  procurement  which  is  confirmed  by  competent 
authorities and may also be ascertained through data provided by other sources. The 
majority of conflict of interest cases transmitted by the National Integrity Agency to 
the judicial authorities for decision relate to public procurement. A number of high-
level cases of corruption also relate to public procurement. 

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