COMMISSION STAFF WORKING DOCUMENT ROMANIA: Technical Report Accompanying the document REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL On Progress in Romania under the Co-operation and Verification Mechanism
Date: 2012-07-18
Institutions: European Commission
Subjects: Romania, award of contract, corruption, judicial reform, rule of law

EUROPEAN COMMISSION 

Brussels, 18.7.2012  
SWD(2012) 231 final 

COMMISSION STAFF WORKING DOCUMENT 

ROMANIA: Technical Report 

Accompanying the document 

REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND 
THE COUNCIL 

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

{COM(2012) 410 final} 

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COMMISSION STAFF WORKING DOCUMENT 

ROMANIA: Technical Report 

Accompanying the document 

REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND 
THE COUNCIL 

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

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.............. 4 

• 

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...................... 12 

•  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 ...................................................................... 17 

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•  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. 

INTRODUCTION 

This technical report sets out the information and the data which the Commission has used as 
the basis for its analysis. This information has been collected from a variety of sources. Over 
the past five years, the Commission has devoted particular attention to collecting information 
and deepening its knowledge of Romania. It has used a combination of on-the-spot dialogue 
with  key  interlocutors,  a  permanent  presence  in  the  Commission's  representation,  and  the 
knowledge and experience of experts from other Member States. It has also had the benefit of 
working  closely  with  successive  Romanian  governments,  which  have  provided  detailed  and 
focused responses to a series of questionnaires, as well as with a variety of key judicial and 
governmental  bodies.  This  technical  report  makes  several  references  to  past  reports  of  the 
Commission  under  the  Co-operation  and  Verification  Mechanism  (CVM),  which  provide  a 
collective record of progress since Romania's accession to the EU. 

This technical report summarises developments over the full five year period. Nevertheless, it 
should  be  noted  that  it  has  been  drafted  at  a  time  of  rapid  change  in  Romania,  with 
implications for many of the issues raised. 

A  number  of  decisions  by  Government  and  Parliament  in  the  week  of  2  July  raised  serious 
concerns  regarding  the  respect  for  judicial  independence  and  the  rule  of  law  in  Romania. 
These decisions appeared to deliberately remove effective Constitutional controls of political 
decisions. They  included deliberate actions  to limit  the powers of the Constitutional Court,1 
the replacement of several senior officials2 and changes to referendum rules.3 Some of these 
decisions  werecontrary  to  constitutional  requirements.4  These  events  were  accompanied  by 
pressure against individual magistrates.5 

2. 

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

Reform of the judicial system is one of the two overarching themes monitored under the Co-
operation and Verification Mechanism in Romania. At the point of accession it was concluded 
that  shortcomings  remained  in  the  functioning  of  the  Romanian  judicial  system  which 
required further reforms. These reforms focused on the need to strengthen the efficiency and 

1 

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3 

4 

5 

The  power  to  review  decisions  (as  opposed  to  laws)  passed  by  Parliament  was  taken  away  from  the 
Constitutional Court on 4 July by Government Emergency Ordinance (GEO) 38/2012. This ordinance 
was  published  and  entered  into  force  only  on  the  same  day.  An  identical  legal  provision  previously 
proposed by the Parliament in a draft law has been declared unconstitutional on 9 July. 
This notably concerns the replacement of the Ombudsman on 3 July.  
The  rules  for  the  validity  of  the  referendum  to  impeach  President  Basescu  were  changed  by 
Government  Emergency  Ordinance  on  5  July.  The  Constitutional  Court  later  required  that  for  the 
validity  of  the  referendum,  a  participation  of  at  least  50%  plus  1  of  voters  in  the  electoral  list  would 
have to be achieved.  
For instance, amendments to the powers of the Constitutional Court were made by GEO, which is not 
allowed under Article 115 of the Constitution. Government Emergency ordinances can only be directly 
attacked in the Constitutional Court by the Ombudsman. 
The Constitutional Court published a press release on 6 July that a judge had received threats ahead of a 
decision which was to be taken on the same day. 

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consistency  of  the  judicial  process,  as  well  as  the  transparency  and  accountability  of  the 
judiciary.  

Statistics  of  the  ECHR  show  that  Romania  counts  the  second  highest  number  of  ECHR 
judgments  among  any  EU  Member  State  which  are  pending  execution.  A  large  number  of 
these  judgments  concern  difficulties  with  civil  enforcement,  the  excessive  length  of  civil 
proceedings and the absence of an effective remedy and ineffective criminal investigations.6  

In  more  detailed  terms  this  involved  adopting  new  Codes,  implementing  measures  to  unify 
jurisprudence, strengthening human resources management within the judiciary, restructuring 
the Public Ministry, and enhancing the capacity and accountability of the Superior Council of 
the  Magistracy  and  of  the  transparency,  accountability  and  integrity  of  the  judiciary  as  a 
whole.  

Reform of the legal framework and the new Codes 

A  central  component  of  the  judicial  reform  initiatives  of  the  Romanian  authorities  has  been 
the modernisation of legislation. Since 2007 Romania has adopted new substantive Civil and 
Criminal  Codes  and  their  accompanying  procedure  Codes.  This  has  been  a  significant 
legislative  undertaking,  requiring  important  efforts  by  the  executive,  legislative  and  the 
judiciary.  Taken  together,  the  new  codes  seek  to  modernise  the  substantive  law  and  to 
improve the efficiency and consistency of the judicial process.  

Modernisation of the substantive law has included efforts to increase the predictability of the 
judicial  system,  by  regulating  more  clearly  the  fields  of  civil  and  criminal  law.7  The  new 
substantive codes have also introduced possibilities (such as the possibility to obtain a divorce 
before a notary where the divorce is by mutual consent) which may help reduce the workload 
of the courts.  

The new Procedure Codes contain a variety of new approaches which seek to strengthen the 
consistency  and  efficiency  of  the  judicial  process.  Significant  reforms  are  made  to 
jurisdictional  arrangements  and trial  procedures  by  both  codes,  including  introducing  a  new 
preliminary ruling procedure to assist with the unification of jurisprudence. The new Criminal 
Procedure Code also introduces the "opportunity principle" for the prosecution, a preliminary 
chamber  judge  –  who  should  check  the  legality  of  the  indictment,  evidence  and  procedural 
acts,  preventing  such  issues  delaying  the  substantive  trial  –  and  an  admission  of  guilt 
procedure before the court.8 

However, despite the adoption of the new substantive codes in 2009 and the new procedural 
codes  in  2010,  so  far  only  the  new  Civil  Code  has  entered  into  force.  This  Code  came  into 
force in October 2011. The new Civil Procedure  Code is  scheduled to enter into force on 1 

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8 

Of  approximately  151,600  applications  pending  before  a  judicial  formation  on  1  January  2012,  8,1% 
had been lodged against Romania. 
The  new  Civil  Code,  for  example,  brings  together  regulations  on  private  persons,  family  and 
commercial  relations  in  one  place.  The  new  Criminal  Code,  for  example,  regulates  more  clearly  the 
sanctioning regime, including the application of fines and complementary penalties, the penalties to be 
applied  in  the  case  of  defendants  convicted  of  multiple  offences,  and  the  criteria  for  individualising 
penalties. 
Other  reforms  streamline  the  handling  of  evidence.  According  to  the  new  Criminal  Procedure  Code, 
only the evidence challenged by the parties will have to be re-administered in court. The new Criminal 
Code also includes offences of obstructing justice (contempt of court) which will incriminate the refusal 
of witnesses/parties to show up in court when summoned. Currently only administrative and procedural 
sanctions can be applied in these cases. 

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September  this  year.9  Work  to  implement  the  new  Criminal  Code  and  Criminal  Procedure 
Code is ongoing, with entry into force foreseen for 2013.  

Implementation  has  proved  and  remains  a  challenging  task  for  the  Romanian  institutions. 
Significant  further  efforts  are  required  to  ensure  a  smooth  implementation  of  the  remaining 
codes.  This  includes  further  legislative  efforts,  with  implementing  laws  still  needing  to  be 
adopted for the new Criminal and Criminal Procedure Codes – an important step in delivering 
legal  certainty  and  fixing  a  clear  implementation  date  –  but  also  other  essential  measures 
including  training,  further  recruitments,  internal  restructurings  and  other  managerial  and 
organisational measures, as well as public information campaigns.10  

In  July  2011,  the  Commission  recommended  the  Romanian  institutions  to  accompany  the 
entry into force of the new Civil Code and to adopt a comprehensive implementation plan to 
guide  their  efforts  to  implement  the  remaining  three  new  codes.11  An  implementation  plan 
was drafted and was finalised by the Ministry of Justice in early 2012 following consultations 
with other institutions. However, although covering the principal issues, its endorsement by – 
and the active engagement of – other institution appears unclear. In addition, further details 
still  have  to  be  worked  out,  key  decisions  still  have  to  be  taken  by  the  executive  and  the 
judiciary,  and  the  plan  does  not  seem  to  have  developed  into  the  kind  of  comprehensive, 
living road-map envisaged.12 Efforts therefore remain disjointed, which presents a continuing 
risk for the efficiency and effectiveness of the implementation.13 

Implementation has been further complicated by the decision of the Romanian authorities to 
draft  an  impact  study  only  after  the  codes  themselves  had  been  adopted.  A  study  has  now 
been drafted and is being used as a tool to assist with implementation, identifying resourcing 
and  other 
the  process  of 
implementation and opened the door to calls to reopen discussions on central elements of the 
new  Codes:  the  argument  being  that  since  the  true  practical  and  resource  implications  were 
not  factored  into  the  policy  making  process,  the  implementing  law  should  include  changes 
which effectively amend the Code itself.  

implementation  needs.  However, 

this  delay  prolonged 

In these circumstances further work is therefore required to complete the reform initiated by 
the drafting of new codes. It also remains too early to draw conclusions on the impacts that 
result  from  the  new  Codes,  to  see  if  they  have  achieved  their  goals  to  modernise  the  legal 
framework and to strengthen the efficiency and consistency of the judicial process.14 The task 

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12 

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14 

The  preliminary  ruling  procedure  foreseen  in  the  new  Civil  Procedure  Code  will  come  into  force 
separately, on 1 January 2013. 
The implementing law for the new Civil Procedure Code was adopted by the Parliament on 8 May 2012 
The implementing law for the new Criminal Code was sent to Parliament in 2010 but is currently still 
pending in the decisional chamber, the Chamber of Deputies. 
See the Commission’s Report of 20 July 2011, COM(2011) 460 page 8 
For example, one such question is what to do with small courts that have insufficient judges to apply the 
new Criminal Procedure Code. The plan envisages the closure of these courts, but it seems the political 
decision to pursue this course has not yet been taken.  
One such example is the decision that the new preliminary ruling procedure contained in the new Civil 
Procedure Code will not enter into force with the rest of the Code this September, but will be delayed 
until January 2013. This delay is justified by the need to recruit additional personnel at the High Court 
to ensure the smooth operation of this new mechanism. However, the delay raises questions as to the 
thoroughness  of  the  consideration  that  established  the  implementation  date  for  the  Code  as  a  whole, 
whilst also raising questions as to the efficiency of the preparations for implementation given it has not 
proved  possible  in  the  two  years  since  the  Code  was  adopted  to  prepare  for  application  of  these 
provisions.  
This is true even for the new Civil Code which is now in force. The time period since implementation is 
too short to draw comprehensive findings. 

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of the Romanian authorities is therefore to consolidate and intensify efforts to implement the 
remaining new codes, and to concentrate then on identifying the tangible impacts that result.  

In the interim, with a view to expediting some of the reforms, in 2010 a Small Reform Law 
was  adopted,  amending  the  existing  procedure  codes  with  a  view  to  accelerating  judicial 
proceedings  and  increasing  their  quality.  Key  reforms  strengthened  the  efficiency  of  the 
prosecution by allowing the prosecution to take over motivations of the police in simple cases 
where  the  prosecutor  decides  not  to  open  an  investigation,  and  by  introducing  greater 
possibilities for the prosecution not to pursue cases where existing evidence does not warrant 
further  investigation.  Other  changes  sought  to  expedite  trials  –  streamlining  summonsing 
procedures and introducing a guilty plea procedure – as well as to strengthen the efficiency of 
the existing mechanisms for unifying jurisprudence. Reaction from practitioners clearly points 
to the conclusion that this law has had a positive impact, anticipating in some cases provisions 
in the new Codes.  

Unification of jurisprudence 

At  the  point  of  Romania’s  accession  to  the  European  Union  one  persistent  vulnerability 
identified was the inconsistent interpretation and application of the law.  

Since  accession  the  major  legislative  reforms  adopted  have  all  sought  to  strengthen  the 
mechanisms  for  unifying  jurisprudence.  Addressing  in  part  recommendations  issued  by  the 
Commission in 2009 and 2010, the Small Reform Law amended the competence of the High 
Court, reducing its scope of jurisdiction as a first instance and first appeal court, in order to 
help the Court to focus on cassation and unification of jurisprudence. It also streamlined the 
appeal in the interest of the law, an existing extraordinary mechanism for resolving, for future 
cases,  legal  questions  arising  from  inconsistent  final  decisions.15  The  new  Procedure  Codes 
consolidate these reforms, overhauling jurisdictional arrangements, concentrating jurisdiction 
for second appeals at the High Court and refocusing second appeals on their primary cassation 
purpose. To complement the appeal in the interest of the law, the new procedure codes also 
introduce  a  new,  more  proactive  mechanism  for  unifying  jurisprudence.  This  preliminary 
ruling  procedure  allows  for  a  court  ruling  in  final  instance  to  address  questions  to  the  High 
Court for an interpretative ruling that is binding both for the court in question and for future 
cases.  

The reforms brought by the Small Reform Law have been well received by practitioners, and 
have led to real improvements in terms of the efficiency of solving appeals in the interest of 
the  law.16  However,  the  total  number  of  appeals  solved  through  this  mechanism  remains 
small,  questioning  how  far  it  has  contributed  to  solving  the  problem  of  inconsistent 
jurisprudence.17  More  far-reaching  reforms  are  introduced  by  the  new  Procedure  Codes. 
These Codes offer the potential for the High Court to consolidate and intensify its important 

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17 

The  Commission’s report of 22  July  2009, COM(2009) 401, recommended  that  Romania  “strengthen 
the  role  of  the  High  Court  of  the  Cassation  and  Justice  in  unifying  jurisprudence,  including  through 
streamlining the procedure for appeals in the interest of a coherent interpretation and application of the 
law…”.  The  Commission’s  report  of  20  July  2010,  COM(2010)  401,  recommended  that  Romania 
“Consider  a  revision  of  the  competence  of  the  High  Court  of  Cassation  and  Justice  by  reducing  the 
competence to try cases in first instance and limiting the judging of appeals to points of law. Consider 
implementing other measures proposed by the High Court in a draft law to improve legal unification.”  
These appeals are now being routinely solved, motivated and the decisions published within four and a 
half months of notification of the Court. 
In 2011 33 appeals in the interest of the law were resolved. This contrasts to 73 in 2007, 46 in 2008 and 
37 in 2009. Between January and 11 June 2012 9 appeals in the interest of the law were resolved. 

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role 
in  unifying 
responsibilities.18  

jurisprudence, 

in 

fulfilment  of 

their  constitutionally  enshrined 

It remains to be seen how the revised jurisdictional arrangements and new preliminary ruling 
procedure  will  function  in  practice.19  The  High  Court  will  need  to  be  prepared  for  their 
revised  tasks.  Suitable  filters  will  need  to  be  in  place  to  establish  the  clear  admissibility  of 
appeals or requests for preliminary rulings. At present it is unclear whether these filters are in 
place.20 

The High Court will be crucial to the success of legislative reforms in establishing efficient 
arrangements and mechanisms for unifying jurisprudence. The High Court has begun to take 
steps to prepare for their new tasks, undertaking simulations of how they will handle the new 
preliminary  rulings  and  obtaining  financing  to  hire  a  small  number  of  additional  assistant 
magistrates,  the  majority  of  which  will  be  dedicated  to  assisting  the  panels  responsible  for 
ruling on appeals in the law and preliminary ruling requests.21 However, questions remain as 
to whether the competence of the High Court has been suitably reshaped. For Constitutional 
reasons  the  High  Court  has  to  deal  with  a  significant  workload  of  first  instance  trials  in 
criminal cases, whilst it also has to rule on a significant number of other procedural decisions, 
such as on transfer of files between Courts. In some of these cases, the High Court has shown 
it  can  offer  the  function  of  providing  best  practice,  but  consideration  could  be  given  to 
divesting  the  High  Court  of  some  of  these  competencies  to  allow  the  High  Court  to  focus 
further on their cassation role. Further organisation changes within the High Court could also 
strengthen the efficiency of court proceedings.  

Legislative  reforms  alone  will  not  solve  inconsistent  jurisprudence.  It  also  requires  a 
recognition of the importance of this issue amongst the judiciary. Since 2007 the Romanian 
authorities have also taken a number of practical steps to promote a consistent jurisprudence 
amongst  the  magistracy,  including  meetings,  training  seminars  and  improvements  in  the 
publication of motivated court judgments. However, further work is required. There appears a 
persistent  reluctance  in  some  quarters  to  follow  the  jurisprudence  of  superior  courts.  This 
hampers  –  and  could  continue  to  hamper  –  the  unifying  effect  of  cassation  appeals.22  This 

18 

19 

20 

21 

22 

Article 126(3) of the Romanian Constitution states that “The High Court of Cassation and Justice shall 
provide a unitary interpretation and implementation of the law by the other courts of law”.  
Proposals  for  a  separate  law  on  the  unification  of  jurisprudence  tabled  developed  in  2010  were 
ultimately not progressed.  
Under the new Civil Procedure Code, the admissibility criteria for second appeals has been tightened 
compared to the current Procedure Code. Under the new Procedure Code such appeals can also only be 
lodged by a lawyer. A filter mechanism has been established at the level of the High Court. For the new 
preliminary  ruling  mechanism,  no  filter  mechanism  has  been  established  at  the  High  Court  and  the 
Court will rely instead upon the referring court to check admissibility. It remains to be seen how these 
mechanisms will work in practice. The Commission’s report of July 2011, COM(2011) 460 final, stated 
in respect of the new preliminary ruling procedure, “the application of strict rules to accompany the new 
mechanism  will  be  necessary  to  avoid  that  unfounded  requests  for  preliminary  rulings  unduly  delay 
trials”. Given the new Procedure Codes may impose additional burdens upon the High Court, revisions 
to the existing Procedure Codes could also assist the Court to meet the demands of the new Procedure 
Codes  in  the  transition  period,  such  as  limiting  the  grounds  for  second  appeals  under  the  existing 
Procedure Code.  
Government Decision 108/2012 of 28 February 2012 approved the supplementing of the High Court’s 
personnel  scheme  with  ten  additional  assistant  magistrates.  Seven  of  these  additional  assistant 
magistrates  will  assist  the  panels  responsible  for  solving  appeals  in  the  interest  of  the  law  and 
preliminary ruling requests. The recruitment procedure is underway. 
This  is  why  Romania  has  resulted  to  introducing  the  extraordinary  mechanisms  of  the  appeal  in  the 
interest of the law and the preliminary ruling to unify jurisprudence. 

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necessitates  a  cultural  change  and  a  greater  impact  of  these  issues  in  the  evaluation  and 
promotions system.  

Meetings  between  the  High  Court  and  the  Courts  of  Appeal  to  discuss  jurisprudence  issues 
ceased due to a lack of financing. A video-conference system which was procured to allow for 
these discussions to take place remotely is also rarely used, due to budget constraints. Suitable 
financing needs to be ensured. Access to jurisprudence also remains a major impediment. The 
online publication of all court motivations, a Commission recommendation, has not yet been 
achieved.23  This  includes  the  High  Court,  which  does  not  yet  publish  all  its  motivated 
judgments online, reportedly reflecting both resourcing constraints and a recognition that even 
within the High Court itself, there are examples of inconsistent jurisprudence. For other courts 
the situation is worse. Jurindex, a publicly accessible online database, is currently not being 
updated and contains only a limited range of decisions from 2008-10, whilst the public section 
of the courts portal managed by the Ministry of Justice contains even fewer decisions, with 
only a fraction of the total number of decisions issued each year. The internal database is also 
insufficiently comprehensive, posing particular problems for judges ruling in final instance at 
Courts  of  Appeal,  who  can  only  access  the  decisions  from  their  Court  of  Appeal 
circumscription.  These  issues  hinder  both  the  unification  of  jurisprudence  and  also  the 
transparency and accountability of the act of justice.  

Inconsistency  and  a  lack  of  predictability  in  the  jurisprudence  of  the  courts  has  also  been 
identified as a major concern for the business community and for the wider society. Reports 
of inconsistent decisions continue to arise and the new codes may severely test the ability of 
the judicial system to ensure consistent jurisprudence, potentially exacerbating in the short run 
the  challenge  of  inconsistent  jurisprudence.  This  necessitates  intensified  efforts  form  the 
judiciary.  Although  inconsistent  jurisprudence  is  recognised  as  a  major  vulnerability  by  the 
Romanian  authorities,  there  has  been  little  attempt  to  map  this  vulnerability.  This  makes  it 
also more difficult to measure the impact of the measures taken.  

Capacity, human resourcing and structural reform of the judicial system 

At the point of accession, the second major vulnerability of the Romanian justice system was 
efficiency.  This  was  directly  influenced  by  its  capacity.  Since  2007  significant  sums  have 
been  committed  to  judicial  reform  from  external,  as  well  as  internal,  sources.  As  of  March 
2012 projects totalling 57 M EUR have been finalised, projects totalling a further 9 M EUR 
were ongoing and projects totalling a further 13 M EUR were under evaluation. A further 81 
M  EUR  has  been  contracted  of  a  World  Bank  loan  to  support  the  reform  for  the  judiciary. 
Payments from the loan have been made totalling 36 M EUR. As a result of the loan two new 
courts have been constructed, construction work has been completed at a further eight courts 
and  is  ongoing  at  another  four  courts.  The  loan  has  or  is  continuing  to  finance  technical 
assistance  and  to  finance  the  procurement  of  an  integrated  IT  system  for  resource 
management within the judiciary.  

Since  2007  the  number  of  positions  for  judges  and  prosecutors  has  been  expanded,  with  an 
additional 54 positions for judges and 66 positions for prosecutors allocated. The number of 
magistrates seconded out of the magistracy has also been significantly reduced, and a special 
reserve fund of 100 financed magistrates’ positions created to enable additional magistrates to 

23 

The Commission’s report of 20 July 2010 , COM(2010) 401 final, recommended that Romania “ensure 
that  the  full  jurisprudence  of  the  courts  are  published  and  accessible  to  all  in  a  user  friendly,  easily 
searchable  remit”.  The  Commission’s  report  of  20  July  ,  COM(2011)  460  final,  2011  reiterated  this 
recommendation, recommending that Romania “achieve the electronic publication of all jurisprudence”. 

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be allocated to courts or prosecutors' offices with temporarily vacant – and therefore blocked 
– positions and a disproportionate workload.24  

However,  capacity  and  resourcing  issues  continue  to  raise  significant  challenges  for  the 
judicial system. The Commission’s reports under the CVM have followed this issued closely. 
Although  between  2007  and  2011,  significant  numbers  of  new  magistrates  have  been 
appointed  each  year,  the  judicial  system  has  struggled  to  recruit  sufficient  numbers  of  new 
magistrates  to  cope  with  exits  from  the  system  and  there  has  been  negligible  progress  in 
reducing the total number of vacant positions within the judiciary.25 As a result, between 2007 
and 2011 the total number of vacant positions for prosecutors has fallen by only 103 positions 
and of vacant positions of judges by only 8 positions.26  

Significant staffing imbalances remain, with notable variations in workload reported between 
courts of the same level of jurisdiction and between courts of different levels of jurisdiction. 
CVM reports have consistently noted the need for a redistribution of vacant positions.27 The 
redistributions which have taken place have not been extensive enough to tackle discrepancies 
between  courts,  and  a  thorough  re-dimensioning  of  the  personnel  scheme  has  not  been 
attempted.  The  introduction  of  the  new  codes  is  an  opportunity  to  undertake  a  fundamental 
reorganisation, but this does not now seem to be taking place, so that existing inefficiencies 
within the system will remain. A fundamental weakness of the Romanian judiciary has been 
the continued absence of effective mechanisms to measure workload and performance within 
the  judiciary,  and  therefore  make  informed  management  judgments  about  how  many 
magistrates  are  required  and  where.  However,  an  important  project  has  now  been  launched 
which  seeks  to  address  this  deficiency  and  can  be  used,  once  complete,  as  the  basis  for  a 
fundamental reorganisation.28  

Until  recently,  questions  have  also  continued  to  be  raised  as  to  the  professionalism  and 
objectivity of the resourcing decisions taken by the Superior Council of the Magistracy, with 
allegations  of  subjective  decision  making  and  a  tendency  that  the  career  prospects  of 
magistrates prevail over the sound human resources management of the system.29  

24 

25 

26 

27 

28 

29 

Between  2007  and  2010  the  number  of  seconded  magistrates  fell  by  30%.  The  reserve  fund  became 
fully functional in 2008. It allows courts or prosecutors’ offices with positions temporarily vacant (e.g. 
as a result of a secondment or a maternity leave) to hire additional magistrates. The position is returned 
to  the  fund  the  next  time  a  permanent  vacancy  arises  at  that  court  or  prosecutors’  office.  The  fund 
finances  up  to  50  positions  for  judges  and  50  positions  for  prosecutors.  Between  2008  and  2011  59 
positions were occupied through the fund. 
Between  2007  and  2011  981  new  judges  and  841  new  prosecutors  were  appointed.  These  figures 
included a number of prosecutors who were reappointed as judges (113 in total) and a small number of 
judges who transferred to become prosecutors (17 in total). During the same period 793 judges and 635 
prosecutors left office.  
In 2007 there were 347 vacant judge positions and 540 vacant prosecutor positions. As of 2011 there 
were 339 vacant positions of judges and 437 vacant positions of prosecutors.  
The  Commission’s  report  of  22  July  2009,  COM(2009)  401  final,  recommended  that  Romania  take 
“emergency  measures  such  as  transferring  vacant  posts  to  where  they  are  needed  most  (including 
transfers  between  different  court  levels)…”.  The  Commission’s  report  of  20  July  2010,  COM  (2010) 
401 final, recommended that Romania “adopt immediate measures to reduce capacity imbalances by an 
extension of the transfer of vacant positions between appellate regions and between court levels and by 
maximising the use of delegation of magistrates to locations with acute resourcing problems”.  
This  project,  “Determining  and  implementing  the  optimal  volume  of  work  to  judges  and  court  clerks 
and ensuring the quality of the courts’ activity”, is financed by a loan from the World Bank.  
For instance in many of the last five years, when promotion contests have been launched, the Council 
has decided to open all vacant positions at higher level courts and prosecutors’ offices for promotion, 
rather than limiting to those positions where the workload demands necessitate the occupancy of these 
positions.  

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Nearly  half  of  all  new  magistrates  recruited  during  the  five  years  from  2007  have  been 
recruited  using  provisions  in  the  law  allowing  for  extraordinary  direct  entrants  into  the 
magistracy, as opposed to through the usual two-year training at the National Institute of the 
Magistracy.30 The authorities have justified this on the grounds of capacity shortfalls within 
the  judiciary  –  reflecting  an  inability  of  the  leadership  of  the  judiciary  to  estimate  human 
resources needs on the medium and long term – but also capacity constraints at the National 
Institute  of  the  Magistracy.  The  Commission  recommended  increasing  the  capacity  of  the 
Institute to train new magistrates in CVM reports in 2010 and 2011, but this has not yet been 
significantly increased. The total number of initial trainees the Institute can accommodate is 
still capped at approximately 200 per year and the Institute is still restricted by the premises 
they  occupy.  The  volume  of  continuous  training  offered  has  also  fallen  significantly  since 
2007.31 Nevertheless, first steps to address these persisting weaknesses may now be beginning 
to  be  taken,  with  increases  in  financing  for  initial  and  continuous  training  and  provision  to 
hire  15  additional  trainers.32  Further  strengthening  of  the  capacity  of  the  Institute  would  be 
needed to ensure its resourcing adequately reflects the recruitment and training needs of the 
judiciary.  

The  large-scale  usage  of  the  direct-entry  route  has  also  raised  questions  about  the 
thoroughness of selection procedures applied to these candidates and the preparedness of new 
recruits recruited in this way. The Romanian authorities have gradually taken steps to address 
these concerns, but not before significant use has been made of these recruitment channels. In 
2007-2008, 164 magistrates were appointed without a thorough contest. The law at the time 
permitted  legal  professionals  with  ten  years'  experience  to  enter  directly  into  magistracy, 
subject  to  a  simple  interview  before  the  Superior  Council  of  the  Magistracy.  Following 
concerns raised by the Commission this possibility was eliminated. In its place significant use 
has been made of an alternative, existing direct entry route into the magistracy by exam, for 
legal  professionals  with  five  years'  experience.  Since  2007,  708  new  magistrates  have  been 
recruited  through  this  route.  However,  as  these  recruits  have  until  now  sat  a  less 
comprehensive  examination  than  applicants  to  the  Institute  (who  subsequently  would  also 
need  to  pass  a  series  of  further  exams),  and  benefitted  from  only  a  short  period  of  post-
recruitment  training,  questions  remained  as  to  the  equivalent  level  of  preparedness  for  their 
tasks. Following concerns raised by the Commission, in April 2012 the Superior Council of 
the  Magistracy  adopted  amendments  to  internal  regulations  to  apply  equivalent  exams  for 
entry  to  the  Institute  and  direct  entry  to  the  magistracy  and  increasing  training  for  direct 
entrants from one month to two months. However, it remains to be seen if this reform goes far 
enough.  Proposals  to  increase  initial  training  to  six  months  has  been  considered  but  not  yet 
adopted, and would constitute a further step in bringing the standard of direct entry recruits 
closer to those who pass through the Institute.  

Work to implement other structural reforms to the judicial system has also been slow. Little 
progress  has  been  achieved  in  rationalising  the  territorial  distribution  of  courts  and 
prosecutors’ offices. In 2005 external experts recommended the closure and restructuring of a 

30 

31 

32 

In total 448 new judges (45% of the total) and 424 new prosecutors (50% of the total) were recruited 
under these direct entry provisions.  
In 2011 there were 191 continuous training seminars organised by the Institute. Whilst slightly higher 
than in 2009 or 2010, this was significantly lower than in 2007when 282 seminars were held, translating 
into a one third fall in the total training time magistrates on average receive.  
The  expenses  allocated  to  initial  training  have  increased  from  approximately  10  million  RON  per 
annum during 2009 – 11 to over 15 million RON in 2012. The expenses allocated to continuous training 
has also increased from approximately 2 million RON to 3.7 million RON.  

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significant  number  of  courts.33  In  2010  the  Government  brought  forward  draft  legislation 
proposing  the  closure  of  15  currently  functioning  courts  and  their  associated  prosecution 
offices.34 However, in the Parliament the proposals were significantly reduced and only three 
working courts and their associated prosecution offices were closed.35 These closures freed up 
just seven positions of judges and nine positions of prosecutors for reallocation. Further court 
rationalisation has been discussed, but no legislation has yet been proposed.  

There  has  also  been  slow  progress  in  introducing  other  long-proposed  reforms.  Pilot 
programmes have been launched in key areas including the transfer of certain administrative 
tasks from judges to court clerks (piloted 2006-10) and introducing court managers to remove 
some of the burden  of  administrative  tasks from court leaderships (piloted 2009). However, 
these  have  not  yet  been  rolled  out  nationwide,  and  an  agreed  assessment  of  the  optimum 
division  of  responsibilities,  procedures  for  appointing  such  officials  and  their  lines  of 
responsibility  has  not  been  made.  Draft  legislation  was  proposed  to  Parliament  in  autumn 
2011 and is currently pending before the Parliament.  

The commissioning of an overarching review of the functioning of the judicial system is an 
opportunity  to  drive  more  comprehensive  change.  The  review,  financed  with  EU  funds  and 
undertaken by the World Bank, was contracted in February 2012 and should be complete in 
9–12  months.  The  review  is  assessing  the  resourcing,  organisation,  functioning  and 
performance  of  the  judicial  system.  It  should  provide  short,  medium  and  long  term 
recommendations  to  guide  the  direction  of  judicial  reform,  as  well  as  a  vehicle  for 
reinvigorating structural and capacity reforms.  

Superior Council of the Magistracy and the Judicial Inspection 

Integrity  and  accountability  issues  were  the  third  major  concern  affecting  the  Romanian 
judicial system identified at the point of accession. These concerns were closely related to the 
ability  of  the  Superior  Council  of  the  Magistracy  (SCM)  and  of  the  Judicial  Inspection  to 
ensure  a  transparent,  accountable  and  effective  judicial  system,  and  to  uphold  the  highest 
standards of integrity within the judiciary.  
In  line  with  recommendations  set  out  in  CVM  reports,36  since  2007  the  SCM  has  taken  a 
number of measures to improve its institutional transparency. These have included efforts to 
strengthen  communication,  the  progressive  expansion  of  the  institution’s  website,  and  the 
online publication of its decisions, including disciplinary decisions (since 2010). Since early 

33 

34 

35 

36 

External experts recommended the closure of 28 small courts and the effective closure of a further 14 
small  courts which would be  merged  with  larger  courts. A  further  12 small  courts were  proposed for 
merger to create six courts of an efficient size. See “Study on Romanian Court Rationalisation”, Terry 
R Lord and Jesper Wittrup, March 2005, page 30. 
The proposals also provided for the elimination from the list of courts contained in the legislation of a 
further nine courts and their associated prosecution offices which were listed in the legislation but were 
not operational in practice.  
The  law  as  adopted,  Law  148/2011,  also  eliminated  from  the  statute  book  the  nine  non-operational 
courts  and  their  associated  prosecution  offices.  However,  as  these  courts  had  neither  an  allocated 
personnel scheme nor any magistrates attached, their closure will have at most delivered only a small 
financial saving.  
The  Commission’s  Report  of  22  July  2009,  COM(2010)  401  final,  recommended  that  Romania 
“strengthen  the  transparency  and  accountability  of  the  Superior  Council  of  the  Magistracy,  including 
through  the  Council  assuming  its  responsibility  for  a  more  proactive  approach  to  recruitments, 
promotions disciplinary measures, transfers of staff and secondments, and by publishing the Council’s 
reasoned decisions in a clear and accessible format”. 

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2011  the  Council’s  sessions  have  also  been  partially  broadcast  live  online.  However,  full 
transparency is not yet achieved.37  

Efforts  have  also  been  made  to  revise  internal  regulations  with  a  view  to  strengthening  the 
objectivity of various management decisions within the competence of the Council. In certain 
areas these efforts have been complemented by important legislative reforms initiated by the 
government.  In  particular,  in  2011  the  Government  proposed  legislative  amendments  which 
brought  substantial  improvements  to  the  selection  procedure  for  High  Court  judges.38 
Attempts to use internal regulations to ensure a thorough, objective and transparent procedure 
had  failed,  and  the  legislation  reflected  a  determined  Government  effort  to  progress  on  the 
issue.39  The  legislation  was  adopted  by  the  Government  assuming  responsibility  before  the 
Parliament in December 2011. The first selection procedure under this new law is currently 
underway.  

Public  perceptions  of  the  integrity  of  the  judiciary  as  a  whole  are  inevitably  shaped  by 
perceptions of the SCM. Over the last five years, the SCM has had an uphill task to establish 
public  confidence,  due  to  a  number  of  cases  which  have  undermined  the  legitimacy  and 
credibility  of  the  Council  by  seeming  to  show  a  Council  which  fails  to  recognise  that 
protecting the reputation of the judiciary is part of its core functions.40 The recent decisions 
taken by the SCM to more proactively defend the independence of the judiciary and the rule 
of law, as well as the SCM's handling of a number of recent cases, are steps which show the 
SCM  more  ready  to  exercise  its  Constitutional  role  and  address  the  issue  of  public 
confidence.41 

The SCM needs to authorise the search and arrest of magistrates. All 24 requests for search 
filed since 2007 were admitted. Of the 17 requests for custody and 22 for preventive arrest, 
the SCM dismissed such requests in only one case.42 

37 

38 

39 

40 

41 

42 

The  Romanian  Constitution  provides  that  the  Council  takes  decisions  by  secret  vote.  However,  the 
Council has also interpreted this Constitutional provision to mean that the deliberations prior to these 
votes are also treated by the Council as confidential and therefore neither open to the public who attend 
or broadcast online. 
This  important  attribution  has  for  many  years  been  a  source  of  controversy.  It  was  one  of  the  major 
issues raised in a petition for “Integrity and Dignity” signed by hundreds of magistrates in March 2010, 
following controversial appointments to the High Court and in light of a major corruption scandal at the 
Court.  
The new law – Law 300/2011 – introduced a three-stage selection procedure, involving an assessment 
of  the  candidate’s  documentation,  including  court  decisions  prepared  by  the  candidate  during  their 
career,  an  interview  and  a  written  examination.  From  the  first  two  stages,  a  candidate  must  obtain  a 
mark of 80 or above to be able to sit the written exam. The assessment of the candidate’s documentation 
is worth a maximum of 75 points and the interview is worth a maximum of 25 points. In addition to 
creating the basis for a more objective and thorough assessment of candidates, the new procedure also 
brings greater transparency, with candidates’ applications subject to public scrutiny.  
One such episode was detailed in the Commission’s Report of 8 February 2012, COM(2012) 56 final, 
page 3. 
For  example,  the  SCM  issued  a  statement  in  June  defending  the  independence of  the judiciary  in  the 
light of public interventions and attacks by a number of institutions, associations and lawyers in respect 
of one important high-level corruption case. In July the SCM also issued a statement calling for the full 
implementation of all court decisions following public doubts about the effective implementation of a 
number  of  final  court  rulings.  In  July  the  SCM  suspended  from  office  two  prosecutors.  One  of  the 
prosecutors  was  a  member  of  the  SCM  and  the  other  his  counsellor.  The  two  prosecutors  are  under 
criminal investigation in respect of alleged corruption offences. 
The  decision  to  dismiss  the  custody  and  preventive  arrest  measure  against  a  judge  was  taken  by  the 
Section for Judges of the SCM. 

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The particular significance of integrity has been recognised by the SCM with the adoption in 
March this year of a strategy for integrity within the judiciary. This strategy seeks to increase 
the transparency of the judiciary, improve access to the judicial system, enhance ethical rules 
and  integrity  within  the  judiciary  and  improve  the  system  of  disciplinary  liability.  This  will 
need  to  be  backed  up  with  proactive  leadership  and  specific  mechanisms  to  ensure  that  all 
levels of the judicial system recognise their obligations and bring results.  

Various  measures  have  also  been  taken  to  strengthen  the  Judicial  Inspection  and  the 
disciplinary system for magistrates. These have included progressive steps  to  strengthen the 
recruitment  procedure  for  inspectors,  including  to  ensure  the  regional  representativeness  of 
recruits,  the  status  of  inspectors,  and  the  internal  working  practices  within  the  Inspection.43 
Since  2010  the  performance  of  the  Inspection  and  its  inspectors  has  also  been  subject  to 
periodic  evaluations.  The  Inspection  has  also  launched  its  own  website  and  since  2011  has 
produced its own separate annual activity report.44  

CVM  recommendations  had  pointed  to  the  need  to  consider  a  more  thorough  reform  of  the 
Judicial Inspection and disciplinary system.45 More comprehensive and far reaching changes 
to the Judicial Inspection were adopted by the Parliament in December 2011. These seek to 
strengthen the disciplinary system through enhancing the autonomy of the Judicial Inspection, 
expanding  the  range  of  disciplinary  offences  and  sanctions,  and  extending  the  power  to 
initiate disciplinary action to the President of the High Court, the General Prosecutor and the 
Minister  of  Justice.46  The  new  law  also  seeks  to  close  significant  loopholes  in  existing 
legislation  that  had  undermined  the  effectiveness  of  the  disciplinary  system  by  allowing 
magistrates  to  escape  disciplinary  liability  through  retirement  whilst  under  disciplinary 
investigation.47  The  new  law  also  introduces  the  possibility  to  suspend  magistrates  whilst 
under disciplinary investigation.48  

The law came fully into force in May 2012. Its success will depend on whether it strengthens 
the  efficiency  of  the  disciplinary  system  and  the  Judicial  Inspection.  Applying  the  law  in  a 
way  which  shows  its  benefits  as  a  tool  for  enhancing  the  effectiveness  and  integrity  of  the 
judiciary is the best way to reassure those who fear that it could generate potential abuses and 
undermine judicial independence.  

43 

44 

45 

46 
47 

48 

Guidelines  have  been  produced  and  periodic  internal  meetings  now  take  place  to  allow  inspectors  to 
share best  practices  and  to  discuss  points  of  interpretation  and  disciplinary  jurisprudence.  Since  2011 
the Judicial Inspection has sought to better target inspections of courts and prosecutors’ offices and has 
introduced a filter mechanism for disciplinary complaints. 
The introduction of periodic evaluations was a reaction to a recommendation in the CVM report of 20 
July 2010, COM(2010) 401 final.  
The Commission’s report of 20 July 2010 recommended that Romania “consider a thorough reform of 
the disciplinary system. Re-examine the objectives and strengthen the capacity and organisation of the 
Judicial Inspection in order to ensure sufficient focus on disciplinary investigation. Adapt the types of 
possible  disciplinary  sanctions  in  order  to  allow  for  a  greater  variety  of  sanctions  and  take  steps  to 
ensure the application of consistent, proportionate and dissuasive disciplinary penalties.” 
Law 24/2012.  
There are differences of opinion within the judiciary as to whether the revised law prevents retirement 
throughout  the  disciplinary  process,  or  only  once  the  investigation  is  complete  and  the  magistrate  is 
awaiting  a  determination  by  the  Council.  The  latter  interpretation,  which  would  undermine  the 
effectiveness of the reform, is considered artificially narrow by the Ministry of Justice and contrary to 
the broader interpretation foreseen by the legislator.  
First  use  of  this  possibility  was  made  in  June  2012,  with  the  suspension  of  a  prosecutor  from  office 
pending the conclusion of an ongoing disciplinary investigation, 

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The  law  is  of  particular  importance,  given  slow  progress  in  addressing  deficiencies  or 
enhancing  performance  within  the  Judicial  Inspection.49  Despite  periodic  recruitment 
procedures,  there  remain  significant  shortfalls  in  the  personnel  within  the  Inspection,  whilst 
reports  of  inconsistent  practices  continue.50  The  track  record  of  the  Inspection  itself  also 
continues to raise questions. Statistical data supplied for the years 2007-11 indicate that over 
the five years, there has not been a significant change in the number or types of disciplinary 
sanctions  applied  to  magistrates.51  This  data,  combined  with  the  experience  of  certain 
emblematic  cases,  have  continued  to  raise  questions  as  to  whether  the  Inspection  is 
contributing to the reform of the judiciary with the speed, pro-activeness and rigour that might 
be  expected.  The  rigour  of  the  Inspection's  action  and  the  dissuasiveness  of  the  sanctions 
applied has a direct bearing on public confidence concerning integrity within the judiciary.  

Concerns  also  remain  as  to  the  efficiency  of  the  Judicial  Inspection’s  work  in  their  non-
disciplinary control activity. Although since 2006, the Inspection has undertaken management 
controls  of  all  courts  and  prosecutors’  offices,  and  undertaken  a  series  of  topic-related 
controls  on  a  useful  range  of  issues,  the  consistency,  impact  and  effectiveness  of  these 
controls remains unclear, particularly in terms of follow-up. The Commission’s report of July 
2011 recommended that the Judicial Inspection demonstrate a track record in the analysis and 
improvement of judicial practice, and a number of useful controls on significant issues have 
been undertaken.52 These controls are more focused than in the past, and some have generated 
the  formulation  of  important  recommendations.  If  these  recommendations  are  followed  up 
and  this  practice  becomes  generalised,  it  will  represent  an  important  step  in  the  use  of  the 
Inspection to promote reform.  

Public Ministry 
At the point of accession, specific deficiencies were also identified in the prosecution.53 Over 
the five years since accession, the then newly appointed General Prosecutor has in the course 
of her two mandates taken a series of measures designed to strengthen the management and 
performance  of  the  prosecution.  Measures  taken  have  included  greater  prioritisation,  the 
adoption  of  local  strategies  for  combating  certain  priority  crimes,  the  introduction  of  new 
more focused evaluation criteria for prosecution offices, the creation of networks of dedicated 
and  specialised  prosecutors,  targeted  trainings,  and  the  drafting  and  dissemination  of  best 
practices guides.  

49 

50 

51 

52 

53 

For  example,  Government  Emergency  Ordinance  59/2009,  despite  making  explicit  provision  for  the 
Judicial Inspection to launch ex-officio proceedings regarding the disciplinary offences committed by 
magistrates, has not so far succeeded in encouraging a proactive approach by the Inspection. 
The occupancy rate of inspector positions within the Inspection fell from 75% in 2007 to 62% in 2011. 
The total number of provided positions is also significantly lower than existed prior to the creation of 
the Judicial Inspection.  
Between 2007 and 2011 the Superior Council of the Magistracy penalised 52 judges and 18 prosecutors 
for breach of disciplinary offences. The vast majority of these magistrates received either warnings or 
small salary reductions. However, 16 magistrates were excluded from the magistracy, though a number 
of these exclusions have either been overturned by, or are pending on appeal before, the High Court.  
These include controls on the celerity of high level corruption trials, on cases pending in the courts for 
more than ten years, and for managerial efficiency at the High Court. The control report on the celerity 
of  high  level  corruption  trials  is  significantly  more  comprehensive  than  a  similar  control  report 
produced in 2010. 
The Commission’s Monitoring Report on the State of Preparedness for EU membership of Bulgaria and 
Romania of 26 September 2006 stated, "no steps have yet been taken to address the Public Ministry’s 
serious  managerial  shortcomings  such  as  the  very  uneven  distribution  of  workloads,  lack  of  relevant 
ongoing training and inability to collect statistics" (page 34)  

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Addressing specific weaknesses identified in the pre-accession monitoring reports, the Public 
Ministry  has  also  developed  its  internal  computer  systems,  establishing  a  case  management 
system, a secure communication system, direct access to state databases, and a virtual library 
containing  an  archive  of  decisions,  jurisprudence  and  guidelines.  The  case  management 
system  ensures  file  tracking  and  provides  management  data,  improving  statistical  data 
collection to strengthen the monitoring of the performance of the prosecution as a whole. The 
General  Prosecutor  has  also  actively  proposed  and  supported  closely  the  legislative  reform 
process, ensuring the introduction of provisions in the Small Reform Law and the new Codes 
which  are  designed  to  strengthen  the  efficiency  of  the  prosecution.  Further  reforms  to 
strengthen the control of the Public Ministry over the judicial police and to hire technical and 
scientific  experts  to  assist  the  regular  prosecution  are  being  pursued  in  the  context  of 
implementation of the new Codes. 

As  a  result  of  this  proactive  approach,  Romania  can  report  a  significant  increase  in  the 
prosecutions of smuggling, tax evasion, corruption and organised crime offences.54 Although 
these  increases  may  in  particular  be  the  result  of  the  work  of  the  specialised  prosecution 
offices, rather than necessarily reflecting changes in the prosecution as a whole, over the last 
five  years  there  has  also  been  a  steady  increase  in  the  total  number  of  solved  cases  and  of 
indictments,  indicating  more  generalised  improvements.55  Tangible  improvements  in  the 
efficiency of the prosecution are reported to have resulted from the Small Reform Law, whilst 
further efficiency gains are awaited once the new Criminal Procedure Code is in force.  

However,  despite  these  improvements  there  remain  significant  challenges  to  be  addressed. 
One of the principal concerns flagged at the point of accession was of the uneven distribution 
of workload. The General Prosecutor has made a series of proposals in this field over the last 
five years, some of which have been adopted by the Superior Council of the Magistracy and 
led  to  some  reorganisation  of  personnel  schemes  and  redistribution  of  positions.56 
Nevertheless acute imbalances between resourcing and workload remain.57 More substantial 
efforts  to  promote  the  further  redistribution  of  positions,  the  closure  of  small  prosecutors’ 
offices or the redefinition of territorial districts have not been accepted by the Council.  

Other challenges include the persistence of large numbers of vacancies within the prosecution 
and  insufficient  auxiliary  personnel,  whilst  the  sizeable  number  of  new  recruits  who  have 
entered  the  prosecution  in  recent  years  creates  challenges  in  terms  of  experience  and 

54 

55 

56 

57 

Comparing 2011 to 2007, the number of defendants sent to trial in organised crime and corruption cases 
has doubled, the number of defendants in tax evasion cases has tripled, whilst the number of defendants 
in  smuggling  cases  has  increased  ten-fold.  These  include  cases  sent  to  trial  by  the  National  Anti-
Corruption Directorate and the specialised organised crime prosecution service, DIICOT. It is not clear 
how much these figures reflect also improvements in the performance of the regular prosecution offices, 
as opposed to predominately the specialised DNA and DIICOT units. 
In  2007  462,397  cases  were  solved  by  the  prosecution,  with  47,787  defendants  indicted.  In  2011 
579,322 cases were solved by the prosecution, with 60,980 indictments.  
Key  management  functions,  including  the  promotion,  evaluation  and  transfer  of  staff  rest  with  the 
Superior  Council  of  the  Magistracy.  The  General  Prosecutor  is  therefore  dependent  upon  their  co-
operation and action to address resourcing issues within the prosecution. 
Since  2007  some  vacant  positions  have  been  redistributed  between  prosecution  offices  of  the  same 
jurisdictional level, whilst 115 positions were transferred from the Prosecutors’ Office attached to the 
High Court of Cassation and Justice to local prosecution offices confronted with the highest deficits of 
personnel. A further 12 positions were transferred from Prosecutors’ Offices attached to the Courts of 
Appeal.  However,  workload  continues  to  vary  dramatically,  with  the  number  of  files  per  prosecutor 
varying from 300 – 400 in certain locations to over 1,500 files in other locations.  

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institutional knowledge.58 These challenges are exacerbated by the steadily rising number of 
criminal files, with the number of incoming cases outstripping the rate of solved files, despite 
notable year-on-year increases in the number of solved files.59 The impacts of the new Codes 
will  need  to  be  closely  monitored  in  this  regard,  and  further  legislative  interventions 
contemplated  if  the  Codes  themselves  do  not  prove  sufficient  in  ensuring  an  efficient 
framework for managing the inflow of cases.  

The  recovery  of  the  proceeds  of  crime  and  the  pursuit  of  money  laundering  have  also  been 
areas  expressly  identified  under  the  CVM  as  requiring  improvements.60  Over  the  five  years 
since  accession,  the  Public  Ministry  has  taken  a  number  of  steps  to  address  weaknesses  in 
financial  investigations,  the  pursuit  of  money  laundering  and  the  low  levels  of  the 
confiscation of the proceeds of crime. In 2010 external experts were commissioned under an 
EU-financed  project  to  undertake  an  analysis  of  the  performance  of  the  Romanian  system. 
Further measures taken include training for specialised prosecutors and police officers, as well 
as introducing specialised training on the curriculum for trainees at the National Institute of 
the Magistracy. There is now a common order of the General Prosecutor and the Minister of 
Interior  which  lays  down  a  standardised  procedure  to  be  applied  in  all  criminal  cases,  to 
ensure the measures to recover the proceeds of crime are considered in all cases and from the 
earliest moment. These measures have also been assisted by legislative amendments and the 
establishment of an Asset Recovery Office within the Ministry of Justice.  

Reacting  to  the  virtual  absence  of  prosecutions  of  money  laundering  as  an  autonomous 
offence,  in  autumn  2011  the  General  Prosecutor  issued  a  legal  opinion  confirming  that 
existing legislation allowed for money laundering to be prosecuted without a prior conviction 
or simultaneous prosecution of a predicate offence, and without the precise determination of 
the  predicate  offence  that  generated  the  laundered  proceeds.  However,  further  work  is 
required in these fields too. The impact of these measures and the extent to which they have 
contributed to meeting the Commission’s recommendations in these fields are analysed under 
Benchmark  4,  where  the  steps  of  other  institutions  to  improve  the  performance  of  the 
Romanian authorities in these fields in also detailed and assessed.  

3. 

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

The  combating  of  corruption  is  the  second  overarching  theme  monitored  under  the  Co-
operation  and  Verification  Mechanism  in  Romania.  One  part  of  the  requirements  was  to 
establish  an  integrity  agency  to  verify  assets,  incompatibilities  and  potential  conflicts  of 
interest  of  holders  of  public  office.  At  the  point  Romania  joined  the  EU,  this  Agency  –  the 
National Integrity Agency (ANI) – did not exist. Today the Agency has been operational for 

58 

59 

60 

According to figures supplied by the Public Ministry, 20% of prosecutors have less than three years of 
operational experience. 
The number of criminal files has tripled since 2001 and is 50% higher than in 2007. In 2011 there were 
1,656,130 recorded criminal files. These evolutions are not believed to reflect a significant increase in 
criminality, but to reflect legislative issues and an increase in unfounded complaints.  
The  Commission’s  report  of  20  July  2011,  COM(2011)  460  final,  recommended  that  Romania 
"demonstrate convincing results in the recovery of the proceeds of crime by following best practice in 
other  EU  Member  States,  adopting  a  new  law  on  extended  confiscation  and  strengthening  judicial 
practice.  Romania  should  also  demonstrate  a  proven  track  record  in  pursuing  money  laundering  as  a 
stand alone offence." 

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over four years, albeit with its activity severely interrupted in 2010. The key objectives that 
Romania needed to address with a view to fulfilment of this benchmark were to establish an 
effective, robust and secure legal and institutional framework for the Agency, and to deliver a 
convincing track record of investigations, findings / referrals and sanctions. 

Legal Framework 

The  founding  law  of  ANI  was  adopted  by  the  Parliament  in  the  year  after  accession,  and 
strengthened  by  a  Government  Emergency  Ordinance  of  the  same  year.  However,  central 
elements of this legal framework were declared unconstitutional by the Constitutional Court 
in  spring  2010.61  For  a  number  of  months,  work  at  ANI  ceased,  in  the  absence  of  a  legal 
framework.  Following  extremely  difficult  discussions  in  the  Parliament  that  summer,  when 
draft  laws  were  approved  by  the  Parliament  reducing  ANI’s  powers  over  and  beyond 
amendments required to comply with the Constitutional Court decision – an episode detailed 
extensively in the Commission’s report of July 2010 – new legislation was finally adopted in 
August 2010.62 This law now underpins ANI’s activities.  
The 2010 law was discussed at length in the CVM report of July 2011.63 Whilst the new law 
addressed the key points of concern identified in the July 2010 report, concerns remained as 
to  its  effectiveness  in  a  number  of  specific  areas,  in  particular  concerning  the  prescription 
periods  (which  were  introduced  by  the  2010  law)  and  the  functioning  of  the  Wealth 
Investigation Commissions.64  

The  constitutionality  of  the  new  law  has  also  been  questioned.  However,  in  June  2012  the 
Constitutional  Court  rejected  a  series  of  Constitutional  exceptions,  upholding 
the 
Constitutionality  of  central  elements  of  the  2010  law.  Nevertheless,  a  number  of  other 
Constitutional exceptions remain pending, whilst there have also been periodic attempts in the 
Parliament to change ANI’s legal framework, including amendments proposed late last year 
which would have undermined the efficiency and impact of ANI’s activities.65  

Institutional Capacity 

Since  ANI  first  became  operational  in  2008,  significant  efforts  have  been  made  to  develop 
and  consolidate  the  institutional  capacity  of  the  Agency.  Staff  have  been  recruited,  internal 

61 

62 

63 

64 

65 

See the Supporting Document to the Commission’s Report of 20 July 2010, SEC(2010) 949, pages 8 – 
9. 
The Commission’s report of 20 July 2010 (COM(2010)401) concluded that the legislation approved by 
the Parliament on 30 June 2010 “seriously undermines the process for effective verification, sanctioning 
and  forfeiture  of  unjustified  assets…restricts  the  transparency  of  financial  and  economic  interests  of 
dignitaries  and  public  officials  and  excludes  dissuasive 
that  protect  against 
corruption….interrupts  the  encouraging  development  of  ANI  and  breaches  commitments  taken  by 
Romania  upon  accession”.  Following  the  Commission’s  report,  at  the  request  of  the  Romanian 
President,  the  Parliament  met  in  emergency  session  in  August  and  approved  a  revised  new  law,  Law 
176/2010, which was adopted on 24 August and promulgated by the President on 31 August. The new 
law came into force on 6 September 2010.  
See the Supporting Document to the Commission’s Report of 20 July 2011, SEC(2011) 968, pages 8 – 
11. 
These Commissions were re-established by the 2010 law – they had existed prior to the creation of ANI 
– with a view to addressing concerns of the Constitutional Court. 
These  amendments  would  have  limited  publication  of  declarations,  removed  the  ability  of  ANI 
inspectors to obtain documents from other institutions and therefore to undertake their verifications, and 
reduced sanctions for incompatibilities and conflicts of interests. 

sanctions 

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procedures adopted, codes of conduct drafted, trainings undertaken and protocols signed with 
other public institutions.66  

In  particular,  important  investments  were  made  to  develop  computer  systems  within  the 
Agency,  providing  for  an  effective  case  management  system,  assisting  with 
the 
standardisation of procedures and enhancing the efficiency and effectiveness of the work of 
ANI’s  inspectors.  Such  investments  and  efficiency  savings  have  been  especially  important 
given the reduction in the total number of personnel – in particular integrity inspectors – in 
recent  years,  reflecting  austerity  measures  faced  by  the  public  sector  as  a  whole.67  ANI  has 
also established a public portal where all asset and interest declarations submitted by holders 
of public office are published, an important measure for transparency.68 In total the Agency 
and  their  contractors  –  the  scanning  and  uploading  of  these  declarations  is  currently 
outsourced – process over half a million declarations annually.69 Steps have also be taken to 
provide guidance on incompatibilities and conflicts of interest, on the completion of asset and 
interest declarations, and to train contact points in public institutions, with a view to raising 
awareness  and  improving  the  efficiency  and  accuracy  of  the  declaration  submission 
procedure.70  

Work  continues  to  further  consolidate  the  capacity  of  the  Agency,  with  important  further 
upgrades under way to ANI’s information systems, part of a 4 million EUR project financed 
with  European  funds.  This  will  simplify  the  process  of  filing,  archiving  and  analysing  asset 
and  interest  declarations,  providing  for  the  introduction  of  electronic  completion  and 
submission  of  declarations.  It  will  also  introduce  an  improved  public  portal  and  significant 
enhancements to the information system used by inspectors, including secure access to other 
state  databases  and  automated  analysis  of  the  data  compared  to  that  contained  in  previous 
declarations,  as  well  as  with  information  held  by  other  public  institutions  and  with  open 
sources. This should significantly increase the proactive capabilities of the Agency. To help 
finance the further investments foreseen, ANI has received a significant budget increase this 
year.71  

Altogether much progress has therefore been made in establishing suitable infrastructure and 
capacity  within  the  Agency  to  perform  their  tasks  and  important  further  steps  are  already 
foreseen.  These  measures  should  continue.  However,  the  adequacy  of  the  total  number  of 
personnel will need to be kept under review, given indications of increased workload, as well 
the level of remuneration of inspectors and staff retention. 72  

66 

67 

68 
69 
70 

71 

72 

Protocols have been signed with 17 public institutions including the tax authorities (National Agency 
for  Fiscal  Administration),  the  Ministry  of  Administration  and  Interior  (which  provides  for  ANI’s 
inspectors to have access to the records of persons, passports, driving licenses and vehicle registrations), 
the  National  Trade  Register  Office,  and  the  public  procurement  agency  (the  National  Authority  for 
Regulating  and  Monitoring  of  Public  Procurement).  In  some  cases  these  protocols  have  granted  ANI 
direct electronic access to the databases of the partner authorities.  
From  a  high  of  56  integrity  inspectors  in  2009,  by  June  2012  the  number  of  integrity  inspectors  had 
reduced to 35.  
As of June 2012, this portal contained approximately 3 million asset and interest declarations. 
This is based on 2011 figures. In 2011 ANI processed 545,000 asset and interest declarations. 
Three guides have been drafted on: conflicts of interest and incompatibilities; completion of asset and 
interest declarations; and on effective methods for identifying incompatibilities and conflicts of interest 
of locally elected officials. 
ANI’s total budget for 2012 is approximately 43 million RON. Excluding European project funds, their 
total budget is still over 20 million RON, which contrasts to 13.5 million RON in 2011 and 14 million 
RON in 2009, their previous highest ever budget. 
A draft law is in preparation to enhance remuneration for inspectors. 

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The National Integrity Council 

To  monitor  the  performance  of  the  Agency  and  to  guarantee  its  independence,  a  National 
Integrity  Council  was  created,  comprising  of  representatives  of  key  institutions  and  sectors 
covered by the Agency’s activity. The Council has important attributions including proposing 
the  leadership  of  the  Agency,  analysing  its  performance  and  making  recommendations  to 
improve its performance. To assist them in their tasks, they receive each year an independent 
external audit report.  

However,  despite  playing  an  important  role  during  the  initial  phase  of  the  creation  of  the 
Agency, the early years of the Council’s existence were marred by controversy and conflict 
with  the  Agency.73  This  led  the  Commission  to  conclude  in  2010  that  the  Council  had  not 
effectively exercised its role and to propose legal amendments.74  

Since 2010 the legal provisions governing the composition and the functioning of the Council 
have not significantly changed, nor by July 2011 had the appointment of a new Council in late 
2010 addressed significant questions as to the effectiveness of the Council in fulfilling its core 
responsibilities.75  Nevertheless,  in  the  last  twelve  months  the  Council  has  responded 
constructively to the Commission’s concerns and has begun to demonstrate a more proactive 
and  effective  approach.  In  October  2011  a  new  procedure  was  adopted  governing  the 
Council’s  role  in  guaranteeing  the  Agency’s  operational  independence  and  importantly  the 
Council  has  begun  to  translate  these  intentions  into  reality.  Interventions  have  included 
publicly  advocating  for  sufficient  resourcing  for  the  Agency,  opposing  amendments  to  the 
Agency’s  legislation  and  defending  the  Agency  before  Parliament.  The  Council  also 
successfully organised the contest for appointing the new leadership of ANI. The Council has 
therefore shown that it can act as a key instrument to defend the independence of the Agency, 
defending ANI's personnel against outside pressure, and could develop still further its role in 
promoting integrity more generally.  

Track Record, Results and Impacts 

The crucial determinant of success under this benchmark is the track record of investigations, 
referrals,  findings  and  dissuasive  sanctions  applied.  This  track  record  can  demonstrate 
whether the system can deliver efficiency and ultimately impact. 

Since  2008  ANI  has  undertaken  a  significant  number  of  verifications,  issuing  a  sizeable 
number of referrals or findings. In total as of March 2012, the Agency had commenced over 
7,000 verifications against a full range of office holders, including high-level office holders. 
Over 70% of these verifications have been commenced ex officio by the Agency, indicating a 
positive, proactive approach by the Agency. The rest of the cases result from complaints from 
the  public  or  notifications  from  other  public  institutions.  Although  notifications  have  been 
received  from  a  broad  range  of  public  institutions,  surprisingly  few  notifications  have  been 
received  from  the  judicial  and  law  enforcement  authorities,  public  procurement  control 
bodies,  and  relatively  few  from  local  public  administration.  This  raises  questions  as  to 
whether  other  institutions  are  yet  fully  exploiting  the  potential  of  the  Agency,  with  further 
efforts apparently required on the part of such institutional partners to ensure that appropriate 

73 

74 

75 

This  included  an  attempt  by  one  member  of  the  Council  to  influence  decision  making  in  an  ongoing 
ANI case. These events were detailed in the Commission’s Report of 12 February 2009, COM(2009) 70 
final, and the Supporting Document to the Commission’s Report if 22 July 2009, SEC(2009) 1073. . 
See the Commission’s Report of 23 March 2010, COM(2010) 113 final, page 5, and the Commission’s 
Report  of  20  July  2010,  COM(2010)  401  final,  page  9.  Further  details  were  also  provided  in  the 
Supporting Document to the Commission’s Report of 20 July 2010, SEC(2010) 949, page 11. 
Supporting Document to the Commission’s Report of 20 July 2011, SEC(2011) 968 final, page 13.  

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notifications  are  made  to  ANI  and  that  the  protocols  signed  with  ANI  deliver  operational 
value.76  The  Commission’s  recommendation  of  July  2011,  to  improve  the  co-operation 
between  ANI  and  other  administrative  and  judicial  authorities,  particularly  in  the  area  of 
public procurement, remains valid.77  

The  CVM  report  of  July  2011  also  recommended  ANI  further  strengthen  its  proactive 
approach.78  Since  summer  2011,  ANI  has  launched  risk  assessments  to  identify  high  risk 
zones  and  the  first  targeted  screening  of  identified  high  risk  sectors.  The  first  screening 
exercise has been undertaken, focused on local public administration. A significant number of 
potential cases have been identified which are now being followed up on a case-by-case basis 
and  have  already  delivered  a  significant  number  of  findings  of  integrity  violations  and 
referrals  of  possible  criminal  offences.79  A  second  screening  exercise  has  been  launched, 
focused  on  authorities  managing  EU  funds.  This  proactive,  systematic  approach  by  the 
Agency responds directly to the CVM recommendation. 

As  a  result  of  the  total  number  of  verifications  launched,  as  of  March  this  year  ANI  had 
completed  nearly  4,000  verifications,  including  issuing  over  500  findings  of  integrity 
violations or referrals to competent authorities to confirm the existence of unjustified assets, 
possible criminal offences or other administrative violations. The 500-plus cases included 250 
findings  of  incompatibility,  37  findings  of  administrative  conflict  of  interest,  24  cases  of 
suspected  of  unjustified  assets  referred  to  the  courts  and  239  referrals  of  possible  criminal 
offences  to  prosecutors.  A  significant  number  of  these  cases  have  concerned  high-ranking 
officials or dignitaries, including politicians from all the major political parties.80 Just under 
half  the  total  findings  and  referrals  have  been  made  under  the  2010  law,  an  indication  that 
ANI  has  been  able  to  rebuild  its  track  after  the  interruption  caused  when  its  previous  legal 
framework was cancelled by the Constitutional Court. Importantly, the efforts ANI has made 
since 2010 to focus on the more serious and complex cases of unjustified wealth and conflicts 
of  interest  have  continued  and  are  delivering  results,  with  the  vast  majority  of  conflict  of 

76 

77 

78 

79 

80 

Between April 2008 and March 2012 ANI received 66 notifications from police and judicial authorities, 
of  which  the  largest  element  was  supplied  by  the  National  Anti-Corruption  Directorate  (27 
notifications). The Anti-Corruption General Directorate supplied a further 18 notifications, whilst only 
8  notifications  were  supplied  by  other  prosecutors’  offices.  Public  procurement  control  bodies  have 
supplied 5 notifications, including only 1 notification from the National Authority for Regulating and 
Monitoring Public Procurement. Local public administrations supplied 239 notifications, of which the 
majority were supplied by prefects offices, with relatively few supplied by local or county councils.  
The  Commission’s  report  of  20  July  2011,  COM(2011)  460  final,  recommended  that  Romania 
“improve the co-operation between ANI and other administrative and judicial authorities, particularly in 
the area of public procurement”.  
The  Commission’s  report  of  20  July  2011,  COM(2011)  460  final,  recommended  that  Romania 
“improve the investigative capacity of ANI through upgrades to their information system and through 
targeted risk assessments”.  
The  screening  exercise  identified  78  county  and  local  counsellors  whom,  either  personally  or  in  the 
capacity of their spouse, owned or held shares in 105 companies which had contracts and commercial 
dealings with their respective county or local councils worth over €8.5m. The screening exercise has so 
far  resulted  in  75  findings  of  incompatibility,  9  findings  of  administrative  conflict  of  interest,  and 
referrals to prosecutors covering 50 suspected criminal offences.  
The  cases  include:  findings  of  incompatibility  against  16  Members  of  Parliament,  1  Minister  and  2 
judges;  findings  of  administrative  conflict  of  interest  against  17  Members  of  Parliament,  3  County 
Council  Presidents,  1  judge  and  a  former  Secretary  General  of  the  Government;  and  referrals 
concerning  suspected  unjustified  assets  of  4  Members  of  Parliament.  ANI  has  also  referred  to 
prosecutors cases involving 31 Members of Parliament, 2 Ministers, 7 County Council Presidents and 5 
magistrates for suspected criminal offences.  

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interest cases and unjustified wealth cases that have been finalised, finalised since 2010.81 The 
referrals to prosecutors have also increasingly related to suspicions of more serious criminal 
offences. The next step would be to further extend this track record, in particular in the fields 
of conflict of interest and unjustified wealth. 

in 

the 

length  of  verifications, 

However, whilst the overall scale of ANI’s activity is significant, there has also been a notable 
increase 
interest  and 
incompatibilities cases, reflecting in part the reduction in personnel numbers. Despite ANI's 
efforts,  a  significant  number  of  cases  have  also  been  lost  to  the  prescription  periods 
introduced  in  the  2010  law,  with  a  large  proportion  of  the  cases  concerning  holders  of 
political office.82  

in  particular  for  conflict  of 

Moreover,  it  is  important  to  note  that  in  the  vast  majority  of  circumstances,  ANI  is  not 
competent  to  apply  sanctions  itself.  The  ultimate  impact  of  the  Agency’s  activity  therefore 
depends  upon  the  prompt  and  rigorous  follow  up  to  their  findings  or  referrals  by  other 
administrative and judicial authorities.83 For a number of years the Commission’s reports have 
consistently flagged inadequate follow up to ANI’s cases by other administrative and judicial 
authorities and made a series of recommendations in this regard.84 However, whilst there have 
been some small improvements since summer 2011, notably with the first final court rulings 
confirming unjustified assets and ordering their confiscation, the final results remain limited. 
Specifically, as of March 2012, in the four years ANI has been operational: 
The Courts have confirmed the existence of unjustified wealth in just four cases.85 In addition, 
whilst they had ordered the confiscation of assets totalling 1.1 million EUR in these cases, it 
is not yet clear whether these confiscation orders have been enforced.  

Just  two  definitive  findings  of  administrative  conflict  of  interest  have  been  reached,  one  by 
virtue of a final court ruling and the other having not been appealed.86 In neither case have the 
respective contracts signed been cancelled, and in one case the courts have concluded that it is 
not possible to cancel the contract, meaning the benefits gained through the conflict of interest 
have not been annulled.  

81 

82 

83 

84 

85 

86 

Since autumn 2010 ANI has issued 35 findings of administrative conflict of interest, compared to just 
two  in  the  period  between  2008  and  spring  2010.  Since  autumn  2010  ANI  has  referred  18  cases  of 
suspected  unjustified  assets  to  the  Wealth  Investigation  Commissions,  compared  to  just  6  referred  to 
courts between 2008 and spring 2010. 
As a result of the prescription periods introduced, 154 cases were closed. A further 217 cases have also 
so  far  been  affected,  with  ANI  no  longer  able  to  pursue  alleged  integrity  violations  during  earlier 
mandates. Beneficiaries have included 41 Members of Parliament, 10 County Council Presidents and a 
significant number of Mayors, County Counsellors and Local Counsellors. 
This  could  be  the  courts  adjudicating  upon  whether  assets  are  unjustified  and  ordering  their 
confiscation,  the  courts  cancelling  contracts  signed  whilst  an  official  was  in  a  conflict  of  interest, 
prosecutors  investigating  alleged  criminal  offences,  or  disciplinary  bodies  applying  disciplinary 
sanctions for incompatibilities or conflicts of interest. 
In  July  2009,  the  Commission  recommended  that  Romania  "ensure  timely  follow  up  by  judicial  and 
disciplinary bodies to cases submitted by ANI concerning unjustified wealth, incompatibilities and the 
conflict  of  interest".  In  July  2011  the  Commission  recommended  that  Romania  "Demonstrate  a  track 
record  in  prompt  and  dissuasive  sanctions  taken  by  administrative  and  judicial  authorities  regarding 
incompatibilities,  conflicts  of  interest  and  the  confiscation  of  unjustified  assets  in  follow  up  to  the 
findings of the National Integrity Agency" 
Two  of  these  cases  were  cases  ANI  inherited  from  the  previous  mechanisms  for  pursuing  unjustified 
wealth and therefore were already on trial at the point ANI was created. 
In  one  further  case  the  courts  have  definitively  cancelled  ANI’s  finding  of  administrative  conflict  of 
interest. 

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Prosecutors  have  issued  just  one  indictment  resulting  from  an  ANI  referral,  whilst  the  tax 
authorities have issued just one additional tax demand as a result of an ANI referral.87 

The  track  record  on  incompatibilities  cases  is  more  substantial.  A  significant  number  of 
incompatibility findings have become definitive – either through final judgments on appeals 
before  the  courts  or  because  of  the  time  period  for  appeal  expiring  –  and  whilst  the  total 
number of disciplinary sanctions remains rather limited, there have been a significant number 
of  incompatible  officials  who  have  resigned,  either  before  their  file  is  referred  to  the 
disciplinary committee or before a disciplinary sanction is applied. In total definitive findings 
of  incompatibility  have  been  reached  in  118  cases,  resulting  in  53  incompatible  officials 
resigning of their own accord and disciplinary committees applying sanctions in a further 24 
cases, including 8 dismissals.88 However, the 24 sanctions applied also included six verbal or 
written warnings, whilst in a number of further cases disciplinary commissions either refused 
to take action or took no action before the disciplinary liability was prescribed or the mandate 
ended.89  

In general, court proceedings remain lengthy for unjustified wealth cases, conflict of interest 
cases and even the relatively simple issue of incompatibilities. Some of the unjustified wealth 
cases now being finally determined by the courts were inherited by ANI and had actually first 
been  referred  to  the  judicial  authorities  in  2004  and  2005.  All  the  unjustified  wealth  cases 
finally  determined  by  the  courts  pre-date  the  new  law.  Other  cases  have  been  delayed  by  a 
number  of  retrials  and  procedural  circuits  as  competence  is  debated  between  courts.  Whilst 
trials  of  appeals  to  incompatibility  findings  are  in  some  instances  determined  relatively 
promptly  in  first  appeal,  in  other  cases,  often  but  not  exclusively  involving  high  profile 
parties, delays in obtaining hearings mean the trials take far longer. Significant delays are also 
routinely incurred pending first hearings in final appeals. As a result, the courts can take over 
two years to reach a final decision on an appeal to a simple case of incompatibility. This is 
problematic  as  it  can  mean  that  by  the  time  the  decision  becomes  final,  the  subject  may 
already have served the rest of their mandate and no sanction can be applied. This could be 
addressed by streamlining the tiers of jurisdiction. Inconsistent jurisprudence also remains an 
issue between and sometimes within the same courts, indicating that there is not yet a settled 
interpretation in these domains, including on the elements of the violations or the degree of 
proof,  whilst  there  have  also  been  a  number  of  controversial  decisions  raising  considerable 
public comment.90  

Celerity  is  also  an  issue  in  follow-up  by  the  prosecution.91  There  remains  an 
important  need  to  strengthen  co-operation  between  ANI  and  the  prosecution,  in 
particular  the  regular  prosecution  service. Although  a  protocol  was  signed  with  the 

87 

88 
89 

90 

91 

In a further 32 cases prosecutors issued administrative fines where they concluded that the criminal act 
exists, but was not of sufficient social danger to warrant prosecution. 
In 11 further cases ANI’s findings of incompatibility were definitively quashed by the Courts. 
In  five  cases  the  disciplinary  committees  refused  to  take  action,  whilst  in  11  cases  the  disciplinary 
committees either took no action before the disciplinary liability was prescribed or before the mandate 
ended. 
For  example,  Courts  of  Appeals  judges  at  the  same  and  different  Courts  of  Appeal  have  reached 
conflicting verdicts on whether there is an incompatibility between the function of an MP and that of a 
University rector. Media attention has focused on judgments in a number of conflict of interest cases. 
As of March 2012,  just one of the 70 referrals made by ANI since autumn 2010 to the prosecution had 
led to a decision, and this was a decision not to open criminal investigations as the prescription period 
had been reached for the alleged criminal acts. Of the 138 cases referred by ANI to prosecutors since 
2008 in which prosecutors had reached a decision on whether to pursue a prosecution or not, most cases 
took approximately one year. However, there have also been cases that have taken over two years, and 
there remain 101 cases pending a decision by the prosecutors.     

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Prosecutors’ Office attached to the High Court of Cassation and Justice, this does not 
appear  to  have  yet  delivered  results.  ANI  should  be  an  important  source  of 
investigative  leads  for  the  prosecution  leading  to  indictments,  whilst  ANI  should 
itself  receive  a  significant  number  of  notifications  from  the  prosecution  services.  It 
will  be  especially  important  that  the  regular  prosecution  adopt  a  proactive  and 
rigorous  approach  in  following  up  notifications  of  possible  conflicts  of  interest. 
Follow up by disciplinary bodies to final rulings of integrity violations also remains 
inconsistent,  with  some  sanctions  dissuasive  and  prompt,  whilst  in  other  cases 
sanctions are delayed, lenient or not applied at all.92 Concerns have in particular been 
raised  at  the  efficiency  and  dissuasiveness  of  the  sanctioning  regime  for  holders  of 
elected office, including for Parliament.93 

The CVM report of July 2011 raised specific concerns that the wealth investigation 
commissions re-established by the 2010 law may delay cases, act as an unwarranted 
filter – especially given their proceedings are not public and there is uncertainty as to 
whether their decisions are appealable – and duplicate the role of the courts in ruling 
on both substance, procedure and to the same standard of proof as the trial court.94 
The  report  also  raised  concerns  that  no  steps  had  been  taken  to  ensure  consistent 
practice  across 
therefore 
recommended  Romania  to  “take  measures  to  unify  the  practice  of  the  Wealth 
Investigation  Commissions  and  to  ensure  they  handle  the  cases  efficiently  without 
prejudging the decision of the courts”. Since last summer, steps have been taken to 
begin to address the first part of this recommendation, with a series of seminars held 
for members of the commissions in autumn last year, and a non-binding guideline is 
preparation. However, the other concerns remain.  

the  15  different  commissions.  The  Commission 

Since their re-introduction in 2010, as of March 2012 nine cases have been decided 
by the commissions, with five sent to court and four dismissed, and a further seven 
pending. However, the deadline provided in law (three months for the commissions 
to reach a determination) is exceeded in the vast majority of cases.95 Concerns that 
the commissions duplicate the courts have been confirmed.96 In addition, it has not 
yet been established whether ANI can appeal their rulings, whilst concerns have been 
raised  at  the  lenient  practices  of  the  commissions  in  certain  cases.  Given  that  the 
commissions are effectively functioning as a first instance chamber, but without the 
transparency  of  a  court  proceeding,  and  with  one  of  the  parties,  the  Agency, 
potentially denied the right of appeal, further changes would appear necessary. These 
commissions should explicitly constitute a pre-trial procedure and, if the current law 
is  deemed  not  to  provide  such  a  possibility,  ANI  needs  a  right  of  appeal  to  their 
dismissal  ordinances.  Such  changes  would  strengthen  the  efficiency  of  the 
proceedings and, by guaranteeing ANI a right of appeal, ensure the transparency and 
fairness of  the process. The lack  of clarity on the  role  of  the  Wealth  Investigations 
Commissions makes difficult the task of the judges and prosecutors sitting in these 

92 

93 

94 
95 
96 

Three  quarters  of  disciplinary  sanctions  applied  by  disciplinary  committees  were  applied  within  six 
months  of  either  the  finding  of  incompatibility  becoming  definitive  or,  if  later,  the  disciplinary 
committee being notified by ANI. However, there are also three cases where it took over one year for a 
sanction to be applied and a further seven cases which have been pending over one year. 
Parliament is yet to act upon definitive findings of incompatibility and conflict of interest against three 
of its Members. 
This is a higher standard of proof that would not normally be required for a pre-trial phase. 
Decisions are usually forthcoming in approximately six months. 
The commission apply the Civil Procedure Code and administer evidence in line with the Code. 

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commissions,  who  already  have  to  juggle  this  work  with  their  regular  magistrate 
tasks. 

Experience of applying the existing law has  also led to the identification of further 
weaknesses that undermine the efficiency and impact of the integrity system. These 
include significant questions as to: 

• 

• 

The  efficiency  of  the  legal  framework  and  its  application  in  pursuing 
unjustified  wealth.  Assets  have  on  occasions  been  dissipated  whilst  the 
investigation and subsequent legal proceedings are under way, with preventive 
measures not currently provided by law at the point of initial verifications and 
subsequent  preventive  measures  not  being  taken  by  the  judicial  authorities. 
This  may  mean  that  there  are  no  assets  to  confiscate  when  a  final  ruling  is 
reached.  

The efficiency and dissuasiveness of the sanctioning of conflicts of interest. At 
present,  separate  legal  processes  are  required  to  adjudicate  on  any  appeals 
lodged against a finding of conflict of interest, and then to enforce that decision 
and cancel any legal acts signed whilst an official was in a conflict of interest. 
This  can  add  years  to  the  legal  proceedings  before  sanctions  are  applied. 
Recent court jurisprudence has also called into question the ability of the courts 
to cancel contracts in such circumstances. So far not a single contract has been 
cancelled  or  prejudice  rectified  in  the  case  of  a  conflict  of  interest.  This  is  a 
clear shortcoming in terms of the efficiency and dissuasiveness of mechanisms 
to pursue and sanction conflicts of interest.     

The follow-up to ANI’s findings or referrals therefore continues to raise questions as 
to  its  celerity,  rigour  and  dissuasiveness,  with  a  negative  impact  on  the 
dissuasiveness  of  ANI’s  activity.  Despite  ANI's  endeavours,  the  end  results  of  the 
integrity  system  are  therefore  not  yet  convincing  and  the  asset  and  interest 
verification  procedure  is  not  yet  delivering  the  results and  impacts  expected.  There 
are  also  systemic  weaknesses  which  undermine  the  efficiency  of  current  efforts. 
These  weaknesses  are  known  to  the  Romanian  authorities  and  a  working  group 
established  by  the  Agency  and  the  Ministry  of  Justice  has  produced  a  series  of 
legislative  proposals.  These  include  streamlining  the  degrees  of  jurisdiction, 
strengthening sanctions and addressing deficiencies in the legal provisions governing 
the Wealth Investigation Commissions and the handling of conflict of interest cases. 
However,  these  proposals  have  not  yet  been  proposed  in  new  legislation.  This 
reflects persisting concerns over the stability, sustainability and political support for 
the Agency and its activities, in particular concerns as to the tendency of debate on 
ANI in Parliament to turn into a fundamental challenge to its functions and powers. 
These  concerns  have  increased  in  the  light  of  the  events  of  recent  weeks.  The 
experience  of  the  past  five  years  suggests  that  improvements  to  integrity  in  public 
office  requires  not  only  ANI,  but  also  other  key  actors  in  the  executive,  the 
legislature  and  the  judiciary,  to  be  committed  to  a  comprehensive  framework  for 
addressing integrity. 

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4. 

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

The second component of the combating of corruption monitored under the CVM is 
the  pursuit  of  high-level  corruption.  At  the  point  of  accession,  the  quantity  and 
quality  of  non-partisan  investigations  into  allegations  of  high-level  corruption  was 
increasing  and  progress  was  continuing  to  be  made  in  the  fight  against  corruption, 
particularly  in  the  form  of  indictments.  However,  it  was  noted  that  no  final 
convictions  had  yet  resulted  from  these  cases  and  it  was  considered  that  further 
indictments,  trials,  final  convictions  and  dissuasive  sentences  in  high-level  cases 
were  needed  to  ensure  sustainability  and  irreversibility  of  the  recent  progress. 
Concerns also remained as to the political commitment to ensuring the sustainability 
and irreversibility of the progress made.97 The key objectives that Romania therefore 
needed to address with a view to fulfilment of this benchmark were to maintain the 
legal  and  institutional  stability  of  the  anti-corruption  framework  and  to  consolidate 
and further expand the track record of prosecuting high level corruption.  

Legal and Institutional Framework 

The stability  of  the  legislative and  institutional anti-corruption framework has been 
closely  monitored  under  the  CVM  over  the  past  five  years.  On  the  legislative  side, 
there  have  been  a  number  of  proposals  to  change  the  criminal  and  criminal 
procedural  law  on  aspects  related  to  corruption.  Some  of  these  attempts  to  weaken 
the framework were successful – such as the decriminalisation of certain bank fraud 
offences. Others have not succeeded, including recent proposals in Parliament to take 
elected  and  appointed  officials  out  of  the  scope  of  corruption  offences  and  to 
effectively decriminalise conflict of interest. 

On the institutional side, in 2007-2008, there were concerns about attempts to change 
the nomination and revocation procedures for the leadership of General Prosecutor's 
Office  and  the  National  Anti-Corruption  Directorate  (DNA).98  So  far  these 
procedures  have  remained  intact  and  the  DNA  leadership  has  remained  in  office, 
whilst  the  DNA's  budget  and  staff  has  also  remained  stable.99  However,  in  recent 
months  there  have  been  calls  by  some  politicians  to  amend  the  nomination  and 
revocation  procedure,  including  references  to  institutional  change  floated  by 
members  of  the  new  ruling  coalition.  Persistent  doubts  therefore  remain  as  to 
whether there is a broad based political consensus in support  of the anti-corruption 
framework.  

Results achieved by DNA 

Since  2007  DNA  has  continued  to  build  a  convincing  track  record  of  impartial 
investigations. It has taken forward cases against persons from all political parties. It 

97 

98 
99 

Communication  from  the  Commission,  Monitoring  Report  on  the  State  of  Preparedness  for  EU 
Membership of Bulgaria and Romania, COM(2006) 549, pages 34 – 35. The report suggested that “all 
political actors need to demonstrate their commitment to a serious and effective fight against corruption 
and  ensure  that  non  one  is  perceived  to  be  above  the  law…and  to  ensure  stability  in  the  legal  and 
institutional anti-corruption framework”. 
Supporting Document to the Commission’s Report of 22 July 2009, SEC(2009) 1073 
The annual budget was maintained in the range of €15 to 17 m. Also, the level of staff occupancy was 
constantly  around  90%  of  the  total  posts  covered  by  the  organisational  chart  (including  prosecutors, 
judicial police, specialists, clerks and administrative staff).  

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handles some 2,000 files on average per year and sends to courts roughly 200 cases 
per year.100 DNA has shown a high degree of proactiveness in its actions, illustrated 
by  the  steady  rise  in  the  number  of  DNA  investigations  opened  ex  officio.101  The 
average time from pressing charges to indictment is 9-10 months, with roughly 60% 
of the investigations taking less than 6 months.102  

Over  the  past  five  years,  DNA  has  established  good  cooperation  with  other 
institutions,  notably  with  the  Directorate  for  Investigation  of  Organised  Crime  and 
Terrorism  within  the  General  Prosecutor’s  Office  (DIICOT),  the  General  Anti-
Corruption Directorate (GAD) within the Ministry of Administration and Interior and 
the  public  prosecutors’  offices  countrywide.  Overall,  there  has  been  a  substantial 
increase in the number of notifications received by DNA over the past five years.103 
Most  notifications  have  been  submitted  by  the  local  prosecutors'  offices  (60-67%), 
GAD (15-20%), followed by DIICOT, the General Prosecutor’s Office, the Financial 
Guard,  the  police  units  and  inspectorates,  the  National  Agency  for  Fiscal 
Administration  and  the  National  Office  for  Prevention  and  Fight  against  Money 
Laundering and Financing of Terrorism. However, notifications from other important 
institutions  in  this  field,  such  as  the  National  Authority  for  Regulating  and 
Monitoring Public Procurement (ANRMAP) and the Customs Authority, have been 
few.  There  have  also  been  few  notifications  from  other  internal  control  services  of 
public institutions. 

In total, as a result of their investigations, DNA can demonstrate significant results. 
Between  2008  and  2011  DNA  sent  to  trial  cases  with  a  total  estimated  damage  of 
approximately €1.13 billion. In the last five  years DNA has indicted a considerable 
number  of  current  or  former  high-level  officials,  including  14  MPs,  9  ministers 
(including a former Prime Minister), 11 officials with rank of state secretary or under 
state  secretary,  104  mayors  and  deputy  mayors,  6  presidents  and  vice-presidents  of 
county councils, 9 prefects and under-prefects, and 18 directors and general directors 
of  state  owed  companies.  DNA  has  also  robustly  pursued  corruption  within  the 
judiciary, indicting 40 magistrates, including pursuing a number  of important cases 
against senior judges.104  

However,  these  successes  have  not  been  achieved  without  difficulties.  The 
independence  of  the  magistracy  has  been  challenged  on  numerous  occasions  by 
comments by politicians on particular cases. This has included a number of calls to 
dismiss  senior  DNA  prosecutors,  protests  against  the  arrest  of  senior  politicians, 

100 

101 
102 

103 
104 

The number of cases solved annually by DNA progressively increased over the past five years from 1,506 
in 2007 to 2,014 in 2008 and 2,270 in 2011. There has also been a constant year-on-year increase in the 
number of indictments, from 167 cases against 415 defendants in 2007 to 220 against 937 defendants in 
2010 and 233 against 1,091 defendants in 2011. The significant proportion of cases which do not lead to 
indictment (roughly 90% of the registered cases) can be seen as a reflection of the criminal procedure, and 
the  fact  that  prosecutors  are  currently  obliged  to  register  and  deal  with  all  complaints,  irrespective  of 
whether there exist solid grounds for investigation. 
From 45 investigations opened ex officio in 2007 to 88 in 2010 and 120 in 2011. 
This  has  proven  to  be  a  rather  stable  trend  over  the  past  five  years.  A  small  increase  in  the  number  of 
investigations taking over 18 months (from 6.5% in 2007 to 16.3% in 2011) is considered to reflect the 
rise in the overall number of cases handled and the increasing complexity of the files. 
An 80% increase between 2007 and 2011. 
These have included indictments of a number of High Court judges, including the former President of the 
Civil  Section  who  was  indicted  in  May  2010  and  was  convicted  in  first  instance  on  1  June  this  year. 
Investigations are also underway into alleged criminal acts by the former Presidents of the Administrative 
and Criminal Sections.  

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apparent requests to undertake disciplinary investigations into judges who have tried 
high-level corruption cases, and attempts to influence the conduct of cases in court. 
Concerns  regarding  political  challenges  of  judicial  independence  have  increased  in 
the light of the events of recent weeks (see main report). A recent criminal case has 
been opened following evidence of an attempt to unduly influence the position of a 
state  body  in  an  emblematic  case.  The  state  body  had  made  a  civil  claim  as  an 
important part of the case but, following a change in the institution’s leadership and 
their  hierarchical  subordination  by  the  new  Government,  surprisingly  withdrew  the 
claim. The public controversy which resulted led to the dismissal of the institution’s 
leadership  and  the  reinstatement  of  the  civil  claim  but  the  chain  of  events  raised 
many questions.105  

The dissuasiveness of judicial decisions against corruption 

CVM  reports  have  consistently  pointed  to  the  importance  of  effective  prosecution 
and dissuasive sanctions in addressing the problem of high level corruption. Over the 
past five years, there has been a substantial increase in the number of both final and 
non-final convictions in corruption cases investigated by the DNA.106 In particular, a 
major increase in the number of court decisions could be noted in 2011 following a 
number  of  legislative  and  administrative  measures  taken  to  accelerate  court 
proceedings. Just 13% of the total number of cases decided upon by the courts have 
ended in acquittals, some of these acquittals resulting from the decriminalisation of 
certain offences.107 Expert opinion consulted by the Commission has concluded that 
this illustrated a professional and robust approach by the DNA. 

Among  the  defendants  convicted  for  corruption  offences  through  final  court 
decisions  between  2006-2011  were  a  number  of  influential  defendants,  including 
four  current  or  former  MPs,  one  former  State  Secretary,  12  mayors  and  deputy 
mayors,  one  under-prefect,  24  magistrates  and  20  directors  of  national  companies 
and  public  institutions.  An  increase  in  the  number  of  high-level  officials  convicted 
for corruption can be  noted  in  particular  from  2010.  However,  until  2011,  virtually 
no  decisions  were  reached  in  cases  involving  the  more  politically  influential 
defendants.  

The  dissuasiveness  of  sanctions  applied  has  also  been  a  recurrent  concern  over  the 
five years. This remains an issue of concern. Despite some small improvements, with 
an  increase  in  penalties  of  over  five  years  imprisonment,  statistics  for  the  last  four 
years  show  that  approximately  60%  of  the  imprisonment  sentences  set  penalties  at 
the minimum level or below.108 The percentage of penalties imposed at or below the 

105 
106 

107 

108 

Criminal investigations were started for favouring an offender. 
Final decisions reached in 63 DNA cases against 109 defendants in 2007 as compared to 85 cases against 
154 defendants in 2010 and 158 cases against 298 defendants in 2011. So far in the first six months of 
2012  alone,  451  defendants  have  been  convicted  by  final  decision.  The  increase  is  even  more  striking 
when  it  comes  to  non-final  convictions:  from  66  cases  decided upon  against  119 defendants  in 2007  to 
127 against 786 defendants in 2010 and 181 against 879 defendants in 2011.  
The number of acquittals totalled 23 final acquittals involving 54 defendants in 2007, as compared to 24 
final acquittals involving 41 defendants in 2010 and 24 final acquittals involving 62 defendants in 2011. 
As regard non-final acquittal decisions: these ranged from 31 cases involving 80 defendants in 2007 to 24 
cases and 60 defendants in 2010 and 52 cases and 150 defendants in 2011. The increase in the absolute 
number  of  non-final  acquittal  decisions  in  2011  has  to  be  matched  with  the  overall  increase  of  court 
decisions rendered in 2011. 

Penalties over five years' imprisonment rose from around 1% of the penalties imposed in 2008 to over 
7% in 2011. 

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minimum  level  provided  by  law  was  actually  higher  in  2011  than  2008  and  if  this 
trend  were  continued,  reduced  penalties  for  corruption  in  the  new  Criminal  Code 
would reduce dissuasiveness still further.109 Similarly, despite a fall in the percentage 
of suspended sentences since 2008, over 60% of sentences for high level corruption 
cases are still suspended.110 In 2011, all three of the current or former MPs convicted 
by  final  decision  received  suspended  sentences.  In  the  current  legal  framework, 
suspension  of  the  execution  of  penalties  applies  to  all  penalties,  not  only  to  prison 
sentences. If judges decide on a suspended prison sentence they cannot, for example, 
apply a sentence affecting the right to run for public office. This means two of these 
MPs,  despite  final  convictions  for  corruption,  remain  sitting  Members  of 
Parliament.111  A  further  current  Member  of  Parliament,  who  was  convicted  of 
corruption  by  final  decision  this  year,  also  remains  a  sitting  Member  of  Parliament 
by virtue of having received a suspended sentence. 

Nevertheless,  in  a  sign  of  potential  change,  since  summer  2011  there  has  been  an 
acceleration  in  the  number  of  decisions  against  high  ranking  defendants,  including 
the  first  final  decisions  against  the  more  politically  influential  defendants,  and  the 
first prison sentences for high ranking defendents. In 2012, the courts convicted and 
sent to prison one  former Minister  and two current Members of Parliament, one of 
whom  is  a  former  Prime  Minister.  These  defendants  became  the  first  former 
Ministers and current Members of Parliament to be sent to prison for corruption.112 
In July 2012 a former State Secretary was sentenced to five years in prison for abuse 
of  office  –  a  case  which  also  showed  the  HCCJ  making  a  critical  examination  of 
decisions by lower courts.113  

Efforts to promote consistent, proportionate and dissuasive penalties have also been 
taken.  A  compilation  of  court  decisions  relevant  to  penalties  in  corruption  cases 
issued by High Court of Cassation and Justice (HCCJ) and the courts of appeal was 
published  on  the  HCCJ  website  in  2010  and  has  twice  been  updated.  In  2011,  the 
HCCJ issued two studies accompanied by guidelines on individualisation of penalties 
for  certain  corruption  offences.  The  guidelines  covered  passive  bribery,  active  and 
passive trading in influence. Guidelines on aggravating and mitigating circumstances 
on  a  wider  range  of  crimes  were  also  published  by  the  HCCJ  in  2011.  These 
recommendations  and  guidelines  were  well  received  by  practitioners,  with  requests 
to extend this action to cover all corruption offences.  

Dissuasiveness  of  judicial  action  also  relies  on  the  effective  pursuit,  seizure  and 
confiscation of criminal assets. During 2008-2011, DNA estimated damages of €1.13 
billion in cases that reached the courts. The prosecutors seized during the reference 
issued  seizure  orders  for  assets 
period  assets  worth  €532  million.  In  2011,  DNA 

109 

110 

111 

112 

113 

In  2008,  58%  of  the  penalties  imposed  were  at  or  under  the  minimum  level  provided  by  the  law.  In 
2010, 57% of the penalties imposed were at or under the minimum level provided by the law, whilst in 
2011 64% of the penalties imposed were at or under the minimum provided by the law.  
Only around a quarter of sentences given in 2007-09 were served in prison, while this rose to 40% of 
the penalties in 2010-2011. 
This issue will be solved through the entry into force of the new criminal code but this will apply only 
to future cases. 
In March 2012 one then current Member of Parliament received a 5 year prison sentence. In May 2012 
one former Minister received a seven year prison sentence. In June 2012 one Member of Parliament, a 
former Prime Minister, received a two year prison sentence.  
The lower court had restricted the offences concerned in this case, with the effect that the prescription 
period was reached for some aspects of the case, but the HCCJ restored the original scope. 

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worth €212 million and effectively seized €167  million. In the same year, the courts 
ordered convicted defendants to  pay  €33.3 million in damages to public authorities 
and  state  owned  companies.  €14.7  million  was  voluntarily  returned  by  defendants 
during investigations or trials, whilst a further €1.9 million have been returned to the 
bribe  givers  who  denounced  the  bribery  act.114  However  aside  from  these 
compensations to civil parties, in corruption case the courts ordered the confiscation 
of  just  €320,000.  Furthermore,  no  information 
is  available  on  the  amounts  actually 
recovered by the fiscal authorities. Overall, the track record on asset recovery in the 
courts  appears  to  fall  short  of  expectations.  Third-party  confiscation  remains 
problematic and with no common vision of practitioners of how to deal with it. The 
Constitutional provision according to which the licit origin of property is presumed 
further  contributes  to  a  non-unitary  practice  and  cautious  approach  towards  other 
forms  of  confiscation.  Whilst  ANI  can  assist,  and  has  assisted  DNA  to  pursue 
unjustified  wealth  of  public  officials,  ANI  cannot  follow  assets  transferred  to  third 
parties, nor independently freeze assets.  

A  new  law  on  extended  confiscation  was  passed  by  Parliament  in  2012.  This  law 
could  add  to  the  dissuasiveness  of  penalties  and  may  contribute  to  a  change  in 
mentality. It could also lead to more pro-activeness of law enforcement and judiciary 
in carrying out financial investigations and adjudicating on asset recovery.  

Parliamentary immunities 

Although  parliamentarians  do  not  enjoy  full  immunity,  parliamentary  approval  is 
required to approve the opening of criminal investigations into parliamentarians who 
are Ministers, as well as to authorise the arrest or search of any parliamentarian. Over 
the  past  five  years,  there  were  no  improvements  in  the  framework  regarding 
immunities,  whilst  the  immunities  offered  to  existing  Ministers  were  extended  to 
former Ministers by the Constitutional Court.  

Since 2007, DNA, through the General Prosecutor, filed 8 requests to the Parliament 
for lifting immunity from investigation of MPsand 5 to the Romanian President with 
regard  to  the  investigation  of  Ministers  and  former  Ministers  who  are  not  MPs.  115  
The  Parliament  approved  5  of  these  8  requests,  dismissed  two  and  a  decision  is 
pending on one request, while the President approved all the requests. In another case 
regarding an MP (and former minister), the extension of the criminal investigation to 
other  offences  was  dismissed  by  the  Parliament.  As  far  as  search  is  concerned,  the 
Parliament rejected a request against an MP (and former minister). Since 2007, there 
were  three  requests  for  preventive  arrest  of  MPs:  in  one  case  the  request  was 
dismissed  and  in  two  other  cases  admitted.116  The  refusal  to  allow  the  opening  of 
criminal  investigations  establishes  a  de  facto  immunity,  whilst  refusal  to  allow  the 

114 

115 
116 

According to the Romanian criminal legislation, the perpetrators of active bribery and trading of influence 
are  automatically  granted  impunity  in  case  of  effective  regret  and  they  can  recover  the  bribe  given. 
GRECO, in its third round evaluation of incriminations of corruption, recommended for such provisions 
to be abolished: see para 112 and recommendations of GRECO report, p. 38-40:  
http://www.coe.int/t/dghl/monitoring/greco/evaluations/round3/GrecoEval3(2010)1_Romania_One_EN.p
df  
The MPs  were ministers or former ministers. 
The MPs for whom preventive arrest was requested belonged to different chambers of Parliament: two to 
the Chamber of Deputies and one to the Senate. The most recent case was in 2012, when the Chamber of 
Deputies approved within 24 hours the preventive arrest of an MP investigated for organised crime. 

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arrest  or  search  of  parliamentarians  can  make  it  very  difficult  for  investigations  to 
proceed in a normal way. 

The length of time taken by Parliament to reach decisions to lift immunities has been 
extremely  variable,117  and  the  fact  that  there  is  no  requirement  for  Parliament  to 
motivate  its  decisions  means  that  the  consistency  of  decision  making  cannot  be 
established. In one case, Parliament approved the opening of an investigation, but did 
not  approve  search.  In  2011,  the  Commission  recommended  that  clear  procedural 
rules should be put in place for Parliament's decisions to lift immunity.118 The new 
National  Anti-Corruption  Strategy  includes  measures  pointing  to  the  reform  of  the 
immunities  regime.  It  could  also  stimulate  change  concerning  the  approach  of 
Parliament 
towards  parliamentarians  with  convictions  for  serious  offences: 
Currently, there are three MPs with final convictions for corruption offences who are 
still active in Parliament.  

The pursuit of corruption in the courts 

Over  the  first  four  years  of  the  CVM  monitoring,  the  energy  with  which  DNA 
pursued  corruption  cases  was  in  stark  contrast  to  the  follow-up  of  the  high-level 
corruption cases in the courts.119 By 2009, there had been no first instance decision in 
the corruption files of highest public interest. As an example, a case against a former 
Deputy Prime Minister indicted in mid-2006 has seen a series of procedural steps to 
little  effect.  It  was  returned  to  DNA  to  complete  the  investigation,  sent  to  the 
Constitutional  Court  for  two  unconstitutionality  challenges  and  afterwards  from 
HCCJ to the first instance court and then to tribunal level for jurisdictional reasons. It 
took three years before the indictment was even read in court120. By the third quarter 
of 2011, only procedural aspects had been touched upon in the case.  

The  increase  in  court  decisions  from  2011,  notably  in  first  instance,  followed  a 
number  of  legislative,  administrative  and  operational  measures.  Certain  legal 
obstacles  were  removed,  such  as  the  abusive  recourse  to  unconstitutionality 
exceptions in order to delay court proceedings. Over time, almost all important high-
level  corruption  cases  were  suspended  for  unconstitutionality  claims;  for  some,  the 
suspension lasted over one year. The frequent recourse to these options in corruption 
trials  made  the  improvements  introduced  by  amendments  to  the  Law  on  the 
Constitutional Court in 2010, as well as other amendments introduced by the Small 
Reform  Law  the  same  year,  of  particular  importance.  The  Small  Reform  Law 
introduced  measures  which  accelerated  court  proceedings,  including  improved 
summoning  rules,  new  provisions  on  sanctioning  the  abuse  of  procedural  rights  by 

117 

118 
119 

120 

In  a  recent  case,  the  General  Prosecutor  requested  Parliament  to  allow  criminal  investigation  of  a 
Minister on 4 April 2012. Although the Minister resigned the next day, the request for investigation is 
still pending Parliamentary decision. In contrast, another recent case, concerning an arrest request, saw a 
reaction from Parliament within 24 hours. 
CVM report July 2011, SEC(2011) 968, page 9 
Report on Romania's progress on accompanying measures following accession, June 2007, COM(2007) 
378  final,  page  15;  CVM  Report  July  2008,  COM(2008)  494  final,  pages  4  and  6;  CVM  Report  July 
2009, COM(2009) 401 final, page 8; CVM Report July 2010, COM(2010) 401 final, pages 3 and 6. 
See the Supporting Document to the Commission’s Report of 22 July 2009, SEC(2009) 1073, page 11, 
footnote  19;  and  the  Supporting  Document  to  the  Commission’s  Report  of  20  July  2010,,  SEC(2010) 
949, page 13, footnote 19. 

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the  parties,  elimination  of  the  suspension  of  the  criminal  trial  for  illegality 
challenges, and the possibility to plead guilty.121  

Nevertheless, in mid-2011, there were still serious concerns as to the overall duration 
of  court  proceedings:  by  that  stage,  whilst  70%  of  DNA  trials  were  finally 
determined in less than 3 years of court proceedings, in the remaining 30% of cases, 
many of which involved high level defendants, few had reached a first instance court 
decision in that time, let alone a final decision. A disproportionate number of these 
cases  concerned  high  level  officials.122  The  Commission  report  of  July  2011  raised 
concerns  as  to  the  capacity  of  the  judiciary  to  deal  with  complex  and  high  profile 
cases  and  called  for  urgent  measures  to  be  taken  to  improve  trial  management  and 
judicial practice, and to allocate sufficient resources.123  

In  line  with  the  Commission's  recommendations  of  July  2012,  in  the  last  twelve 
months the High Court of Cassation and Justice (HCCJ) has taken a series of steps 
seeking  to  improve  the  celerity  of  high  level  corruption  trials.  The  HCCJ  plays  a 
particularly important role, both as the responsible court for many key cases, and in 
terms  of  an  example  to  the  court  system  as  a  whole.  Since  summer  2011,  building 
upon their own analysis undertaken in 2010-2011 and the Commission’s assessment, 
the  HCCJ  implemented  a  number  of  managerial  and  administrative  measures  to 
ensure a more effective use of courtrooms, as well as arranging to use spare rooms 
from  other  courts.  New  premises  were  allocated  to  HCCJ  in  November  2011  and 
should be ready for use in the coming months.  

The HCCJ visibly accelerated the hearings in a number of high-profile cases, setting 
a weekly hearings in some instances, strengthening judicial practice and sometimes 
challenging  apparent  delaying  tactics  such  as  the  absence  of  defence  lawyers  in 
court. The result was a significant increase in the number of both first instance and 
final  verdicts.124  There  was  a  particular  effort  to  focus  on  cases  where  the 
prescription term was approaching (see below). These improvements in management 
and  practice  need  to  be  continued  and  expanded.  Even  today,  there  are  still  cases 
where the duration of proceedings remains excessive. 

The improvements made by the HCCJ over the last year have shown that the courts 
have discretion to take a more robust approach to ensuring that the course of justice 
is not unjustifiably delayed. For example, the HCCJ leadership asked for additional 
budget from the Ministry of Justice in order to secure payment of expertise from the 

121 

122 

123 

124 

In 2011, for 35 of the 36 defendants who pleaded guilty, the court proceedings lasted a maximum of 1.5 
years. 
By  mid-2011,  of  37  cases  against  current  or  former  Members  of  the  Parliament  or  Government  which 
reached the court between 2005 and 2010, 10 reached first instance decisions and 4 a final decision. In the 
case of a former Minister indicted in 2003, the first instance decision was reached in 2011. 
See the Supporting Document to the Commission’s report of 20 July 2011, SEC(2011) 968,, pages 13 – 
15.  Specific  problems  identified  included:  organisational  issues;  an  excessive  leniency  in  admitting 
postponement  requests from  the  defence;  a passive  approach  to  the  admission  of  evidence,  including to 
determining  at  court  level  whether  all  proposed  witnesses  need  to  be  heard  or  whether  additional 
expertises are required; and the handling of procedural irregularities. 
By  mid-2012,  of  37  cases  against  current  or  former  Members  of  the  Parliament  or  Government  which 
reached  the  court  between  2005  and  2010,  14  reached  first  instance  decisions  and  9  a  final  decision. 
Between 5 September 2011 and 30 March 2012, HCCJ held 295 hearings in high-level corruption cases 
tried  in  first  instance.  Comparative  data  show  a  clear  progress  in  the number  of  decisions  taken  in first 
instance by the Criminal Section of HCCJ: i.e. from 2 first instance decision in high-level corruption cases 
in 2009 and 2 in 2010 to 12 in 2011 and 7 only in the first quarter of 2012. 

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budget  of  the  courts,  avoiding  the  risk  that  experts  would  rely  on  the  defence  for 
payment.125  Also,  some  HCCJ  judges  applied  new  solutions  to  avoid  the  risk  that 
expertises would bring unnecessary delays.126  Training sessions on the use of special 
investigation  measures  were  held  to  help  judges  deal  more  swiftly  with  the 
challenges  of  the  defence  regarding  the  use  of  such  evidence.  The  new  criminal 
procedure code will give more discretion to judges in dealing with potential abuses 
of procedural rights. This will be an important opportunity to address the perception 
that the courts are too ready to allow the course of justice to be delayed. 

A particular problem identified in relation to the celerity of court proceedings, with 
particular implications for corruption cases, is related to the statute of limitations. In 
July 2011, the Commission report mentioned that in three cases sent to court in 2006-
2007, full or partial prescription had been reached and also warned about the risk of 
impending  statute  of  limitation  in  a  number  of  other  high-level  corruption  cases. 
Since then, the HCCJ issued its interpretative ruling to exclude from the time period 
used  to  calculate  the  prescription  date,  time  periods  during  which  a  trial  was 
suspended  pending  the  ruling  of  the  Constitutional  Court  on  an  exception  of 
unconstitutionality. This led to an extension of the prescription periods in a number 
of cases. By focusing the acceleration of hearings on cases approaching prescription, 
the HCCJ was able to reach a number of first instance rulings and some final rulings 
in key high-level corruption cases.127 

In  the  new  Criminal  Code,  the  level  of  penalties  for  certain  corruption  offences  is 
lower than in the current Criminal Code: because of the way in which prescription is 
calculated,  this  will  consequently  lead  to  shorter  prescription  periods.  Due  to  the 
principle  that  the  most  favourable  law  applies,  there  might  be  a  risk  that  some 
ongoing  cases  not  yet  finalised  on  entry  into  force  of  the  new  criminal  code  may 
become  statute-barred.  An  analysis  of  26  ongoing  high-level  corruption  cases 
showed that with the entry into force of the new criminal code, in 10 of these cases, 
the statute of limitations will decrease by roughly 20%, reducing some prescription 
terms to 2013-2014 rather than 2016-2017 as it is the case now. In one case against a 
former Deputy Prime Minister which, according to the current legal provisions, has a 
prescription period of 22.5 years, the entry into force of the new criminal code would 
lead to a drastic reduction of the prescription term to 7.5 years and consequently to 
the dismissal of the file.128 

A  new  calculation  method  of  the  prescription  period  was  introduced  through 
amendments to the existing Criminal Code adopted in 2012 with a view to offsetting 
this  effect.  Also,  some  further  increase  of  penalties  is  reportedly  being  considered 
through  the  implementing  law  of  the  new  Criminal  Code.  However,  there  are 
different views among practitioners as to the application of the most favourable law 
principle  when  both  determining  the  penalty  and  calculating  the  prescription.129  It 

125 

126 

127 

128 
129 

Following  the  request  of  the  HCCJ,  in  a  Government  Decision  issued  on  11  April  2012  the  HCCJ 
received a supplementary budget of approximately 100-120,000 Euros. 
For example, hearing the prosecution's experts under oath or using confrontation in court so as to avoid 
the ordering of unnecessary additional expertise which would have further delayed the proceedings. 
These  rulings  included  a  final  decision  against  a  former  Prime  Minister  and  a  final  decision  against 
another  former  Minister.  A  further  case  against  the  former  Prime  Minister  remains  threatened  by 
prescription, which is due to be reached next year.  
According to the new Criminal Code, prescription in this case would have been reached in 2011. 
Some  magistrates  and practitioners,  including  the  Ministry  of  Justice,  consider  that  the  most  favourable 
law  principle  should  be  applied  in  two  separate  steps  to  both  the  determination  of  the  penalty  and  the 

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would  be  important  to  have  clarity  on  this  issue  before  the  entry  into  force  of  the 
criminal code, to ensure unitary practice and to allow measures to be taken to prevent 
ongoing criminal files reaching prescription. 

Experts consulted by the Commission have also noted a more fundamental issue. The 
way in which prescription works in Romania, with no interruption of prescription on 
indictment  (or  even  on  first  instance  verdict)  as  is  the  case  in  many  other  legal 
systems,  opens up  the  opportunity to  use delays in court to escape justice.  A  study 
carried  out  by  Transparency  International  in  2010  on  the  statute  of  limitations  and 
prosecution  of  corruption  in  the  EU  underlined  that  even  though  the  limitation 
periods  seem  to  be  sufficient,  the  procedures  stipulated  by  law  create  diverse 
possibilities  for  offenders  to  avoid  prosecution.130  The  study  recommends  that  the 
Romanian  statute-barred  regime  extends  and  better  defines  the  grounds  for 
interruption  and  suspension  of  statute  of  limitations.  When  identifying  recurrent 
weaknesses in the statutes of limitations regimes in the EU, the study notes the risk 
of  including  the  appeal  stage  in  the  calculation.  The  study  points  to  a  number  of 
options  which  might  contribute  to  a  debate  in  Romania  on  how  to  reform 
prescription.131 

One  of  the  areas  where  weaknesses  persist  in  the  judicial  practice  in  courts    and 
where not much progress has been made in the last five years regards corruption in 
public  procurement.  In  2010  and  2011,  DNA  handled  54  cases  of  public 
procurement.132  In  these  cases,  24  indictments  were  issued133.  By  mid-2011,  of  the 
43  DNA  cases  on  public  procurement  sent  to  courts  between  2006  and  2010,  final 
decisions had been reached in only two cases. Since July 2011, five convictions were 
issued in first instance against 13 defendants in public procurement cases. Training 
sessions for magistrates focused on public procurement cases were held, notably in 
the last couple of years.  

Ombudsman 

The Ombudsman plays an important role in the fight against corruption in Romania. 
This post is empowered to conduct investigations concerning alleged illegal acts of 
the administration. It is an independent body, which can act on the basis of an appeal 
by any person or on its own initiative. The Ombudsman is also entitled under Article 
26(2) of Law 35/1997 to report to the parliament or to the prime-minister on "grave 
cases of corruption" he finds in the course of his investigations.   

The  Ombudsman  is  also  the  only  institution  that  can  challenge  directly  an 
Emergency  Ordinance  in  front  of  the  Constitutional  Court.  On  3  July  2012, 
Parliament took a decision to terminate the mandate of the Ombudsman. This raised 

calculation of the prescription, whilst others consider only one Code, be it the old Code or the new Code, 
is applied depending on which cumulatively is the more favourable law. A further interpretation is that the 
rules for the calculation of the prescription should be those in force irrespective of which would be the 
most favourable penalty regime. 

‘Timed  out,  statutes  of  limitations  and  prosecuting  corruption  in  EU  countries’,  Transparency 
International, November 2010. 
 http://transparency.ie/sites/default/files/Statutes%20of%20Limitation_web.pdf 

For example, flexibility regarding the start of statute of limitations, very long or elimination of absolute 
statute of limitations, prioritising cases close to statute of limitations, suspension or interruption of statute 
of limitations when a defendant commits another crime, availability of data and statistics. 
32 cases in 2010 and 22 in 2011. 
15 in 2010 and 9 in 2011. 

130 

131 

132 
133 

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issues about the ability of the Ombudsman to perform its important functions without 
political interference.  

5. 

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

The  final  element  of  the  anti-corruption  efforts  monitored  under  the  CVM  is 
corruption prevention and measures to tackle corruption in the public sector. The key 
objective  that  Romania  needed  to  address  with  a  view  to  fulfilment  of  this 
benchmark was to establish an effective strategic, proactive and preventive approach 
to  reducing  corruption,  to  minimise  the  risk  of  corruption  occurring  and  to  detect 
irregularities when they happen. This Benchmark also provided for the follow up of 
horizontal  corruption-prone  sectors,  such  as  public  procurement,  as  well  as  the  law 
enforcement response. 

Corruption perception and indices 

Most recent perception surveys, such as the Eurobarometer on attitudes of Europeans 
towards  corruption  published  in  February  2012,  show  that  the  confidence  of 
Romanian citizens in the effectiveness of anti-corruption measures by the Romanian 
authorities  is  very  low.  From  2007  to  2011,  a  clear  majority  of  Romanians 
participating  in  the  Eurobarometer  surveys  considered  that  corruption  is  a  major 
problem in their country (from 93% to 96%).134 In addition, 67% of the Romanians 
considered  that  corruption  increased  in  the  last  three  years  in  their  country. 
Institutions  perceived  by  the  public  as  suffering  high  levels  of  corruption  include 
customs, police, the judiciary, and politicians at national and local level. Healthcare 
is also considered vulnerable to corruption. 

In  terms  of  international  indices,  Romania's  rating  for  corruption  in  the  Freedom 
House  Nations  in  Transit  ratingshas  shown  no  visible  progress  over  the  past  five 
years135.  The  latest  report  published  in  2012  concludes  that  there  has  been  a  rather 
slow development across the board. The Global Competitiveness Report 2011-2012 
of  the  World  Economic  Forum  identifies  corruption  as  the  fifth  biggest  obstacle  to 
doing business in Romania.136 

National anti-corruption strategies 

From  2005  until  2011,  the anti-corruption efforts of the Romanian  authorities were 
guided by two strategies: from 2005-2007, a strategy coordinated by the Ministry of 
Justice  and,  from  2008-2010,  a  strategy  coordinated  by 
the  Ministry  of 
Administration and Interior, which was extended up to 2011 to allow a new strategy 
to be finalised. In 2010, acting upon a recommendation by the Commission, Romania 
commissioned an independent study to assess the impact of these two anti-corruption 

134 

135 

136 

http://ec.europa.eu/public_opinion/archives/ebs/ebs_291_en.pdf; 
http://ec.europa.eu/public_opinion/archives/ebs/ebs_325_en.pdf; 
http://ec.europa.eu/public_opinion/archives/ebs/ebs_374_en.pdf 
http://www.freedomhouse.org/report/nations-transit/2012/romania  .  Between  2007  and  2012  corruption 
scored 4 from a scale from 1 to 7, with 1 representing the highest level of democratic progress and 7 the 
lowest. 
http://www3.weforum.org/docs/WEF_GCR_Report_2011-12.pdf . 

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strategies,  which  would  serve  as  a  basis  to  draft  a  new  strategy.137  The  study 
concluded that whilst these strategies had been implemented to a large extent, their 
impact was significantly less noticeable. The study identified shortcomings including 
the  absence  of  indicators  to  measure  practical  impact,  a  top-down  approach  in  the 
drafting  and  implementation  of  the  strategies,  the  lack  of  ownership  of  the  main 
players and the insufficient involvement of the legislative and judicial branches. The 
study  recommended  that  a  new  strategy  should  take  a  multidisciplinary  approach, 
involving  all  three  branches  of  the  state  and  civil  society.  It  also  recommended  to 
strengthen the focus on prevention and risk assessment, as well as to ensure stronger 
coordination at the highest political level and better monitoring.  

The  new  National  Anti-Corruption  Strategy  was  adopted  by  the  Government  in 
March  this  year,  re-endorsed  by  the  new  Government  in  May  without  change  and 
further  endorsed  by  the  Parliament  in  a  declaration  adopted  by  the  Parliament  in  
June. The new strategy drew on a wide consultation process involving civil society, 
as  well  as  the  recommendations  of  the  independent  assessment  of  the  previous 
strategies.  The  new  strategy  revolves  around  four  general  objectives:  preventive 
measures,  anti-corruption  education  (including  awareness  raising),  administrative 
and criminal measures, well as monitoring.138 Sectorial plans are to be adopted at all 
levels of all public institutions within three months from the adoption of the strategy. 
Public institutions are also required to identify vulnerabilities and associated risks.  

The strategy will be monitored by the Commission for monitoring the progress in the 
field  of  judicial  reform  and  fight  against  corruption,  which  involves  most  relevant 
stakeholders.  Co-ordination  meetings  will  be  organised  every  six  months,  with 
overall  implementation  co-ordinated  by  the  Minister  of  Justice.  Five  co-ordination 
platforms  have  been  established,  representing  the  main  categories  of  stakeholders 
(independent  authorities,  central  public  administration,  local  public  administration, 
business and civil society). A number of monitoring tools are provided for, ranging 
from self-assessment mechanisms to thematic assessment missions. Despite possible 
gaps identified, including the absence of budgets devoted to the different measures, a 
number  of  imprecise  deadlines,  and  a  lack  of  clarity  over  impact  indicators,  the 
strategy  represents  a  comprehensive  framework  with  dedicated  monitoring,  in  line 
with the Commission recommendation of July 2011. If now effectively implemented 
and  the  potential  gaps  addressed,  it  provides  a  substantial  framework  for 
strengthening Romania’s anti-corruption efforts. 

Anti-corruption measures in public administration and by civil society 

the  Ministry  of 
The  General  Anti-Corruption  Directorate 
Administration  and  Interior  is  one  of  the  pioneers  of  anti-corruption  measures 
applied  at  regional  and  local  level.  Established  in  2005,  GAD  is  unique  in  being 
competent  to  apply  both  preventive  and,  as  judicial  police,  repressive  measures 
against corruption within the police, as well as other structures within the Ministry of 
Administration and Interior (MoI).  

(GAD)  within 

137 

The Commission’s report of 20 July 2010, COM(2010) 401 final, recommended that Romania “strengthen 
the general anti-corruption policy…on the basis of an independent impact evaluation of the results of the 
last two anti-corruption strategies implemented since 2005”.  

138  Measures covered include increased transparency, integrity of the judiciary (under the remit of the SCM), 
transparency  of  financing  of  political  parties  and  electoral  campaigns,  integrity  of  MPs,  public 
procurement, integrity of business environment, and local public administration. 

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Over the last five years, GAD can demonstrate increasing results in the identification 
and pursuit of corruption within the MoI, with an expanding number of prosecutors’ 
investigations and indictments resulting from their notifications. Between 2007 and 
2011, GAD submitted 1,047 notifications to the DNA. This represents approximately 
20%  of  the  overall  notifications  received  by  DNA  from  law  enforcement, 
prosecutors’ offices and public institutions.139 As a result of GAD notifications, DNA 
have issued indictments in 222 cases, whilst GAD also submitted 6,388 files to the 
public  prosecutors’  offices  (other  than  DNA),  leading  to  836  indictments.140  In  the 
courts GAD investigations have led to 538 final decisions against 717 defendants.141  

In recent years GAD can also demonstrate an exponential increase in the number of 
ex  officio  actions,  indicating  a  proactive  approach.142  They  have  also  shown 
proactiveness in their willingness to look beyond their immediate responsibilities for 
police and MoI staff, and accept frequent delegations from prosecutors to undertake 
investigative tasks in other fields, given their expertise, equipment and use of special 
investigative measures.  

GAD can also demonstrate several important large scale investigations undertaken in 
co-operation  with  the  DNA,  including  a  large-scale  operation  targeting  border 
crossing points, linked in particular to cigarette  smuggling.  Over  230  border  police 
and  customs  officers  from  six  border  crossing  points  were  prosecuted  for  bribe 
taking  and  participation  in  an  organised  crime  group.  A  recent  research  study 
commissioned by FRONTEX on anti-corruption measures in EU border control has 
estimated that the border guards in this dismantled network made roughly €500 per 
day from bribes.143 The bribes taken were shared with fellow officers who were not 
in  the  shift,  and  with  their  superiors.144  This  case  followed  earlier,  sizeable 
investigations into corruption in the issuing of driving licenses and has been followed 
by further smaller-scale smuggling cases, investigated in co-operation with DIICOT, 
indicating  significant  corruption  networks 
there  remains 
important  further  scope  to  expand  GAD’s  track  record  in  pursuing  other  areas  of 
serious  and  complex  corruption  within  the  Ministry  including  cases  involving  high 
level officials and corrupt links between police and organised crime, where there are 
currently few reported investigations.  

targeted.  However, 

Aside  from  their  corruption  investigations,  GAD  has  also  been  at  the  forefront  of 
developing preventive activities. For the past five years, GAD has monitored the MoI 

139 

140 

141 

142 

143 

144 

The  number  of  notifications  submitted  by  GAD  has  constantly  increased  over  the  last  five  years, 
ranging from 180 in 2007 to 241 in 2011. 
Approximately  70%  of  indictments  issued  for  corruption  by  the  regular  prosecution  result  from 
notifications submitted by the DGA, compared to just 20% from the Fraud Investigation Service of the 
Romanian Police. 
The  Directorate  also  carried  out  an  analysis  of  the  level  of  sanctions  applied  which  showed  that  649 
defendants were sentenced to prison (155 with execution and 494 with suspension), 7 were ordered to 
pay a criminal fine, 45 were acquitted and in 7 cases the court proceedings were terminated. 
Of the overall 8,358 files submitted by GAD to DNA and other prosecutor’s offices, 2,835 were based 
on  ex  officio  actions,  1,354  based  on  other  notices  (notably  intelligence  services)  and  4,169  from 
citizens’ complaints. The number of ex officio actions increased from 391 in 2007 to 686 in 2010 and 
811 in 2011. 
‘Study on anti-corruption measures in EU border control’, Centre for the Study of Democracy, March 
2012.  The 
following  webpage: 
can 
http://www.frontex.europa.eu/assets/Publications/Research/Study_on_anticorruption_measures_in_EU_
border_control.pdf . 
Estimates suggest that the head of the border crossing point benefited to the tune of €10,000 per month. 

found 

study 

text 

full 

the 

the 

be 

of 

at 

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activity  in  the  field  of  prevention  through  a  number  of  performance  indicators 
ranging from the reporting of corruption to awareness raising, training activities and 
cooperation  with  NGOs.  Starting  in  2009,  GAD  introduced  a  clear-cut  risk 
assessment  system  to  identify  vulnerable  areas  where  priority  actions  are  needed. 
The risk assessment methodology has been implemented within all MoI structures.145 
GAD has also carried out a number of broader activities, including research studies 
looking  at issues  like patterns of corruption in specific areas and the links between 
corruption  and  organised  crime.  It  has  also  run  several  successful  awareness 
campaigns and promoted more user-friendly channels for the reporting of corruption. 
A  reporting  hotline  (TELVERDE)  is  fully  operational  and  has  proven  its 
effectiveness  through  an  increasing  number  of  reports  received  and  criminal  files 
initiated  as  a  result.146  Plans  have  been  developed  to  establish  a  public  sector  wide 
anti-corruption hotline, but this has not yet become operational. 

Aside  from  the  MoI,  activities  by  other  institutions  have  been  less  substantial.  The 
National  Customs  Authority  and  the  National  Agency  for  Fiscal  Administration 
(NAFA) have implemented a number of preventive measures, notably focused on use 
of e-government tools to reduce the risk of corrupt behaviour. However, the Customs 
Authority  in  particular  has  a  less  proactive  attitude  when  it  comes  to  detection  of 
corruption  cases,  which  are  seen  entirely  under  the  remit  of  other  authorities. 
Between  2007  and  2011,  only  15  notifications  were  submitted  by  the  National 
Customs Authority to DNA. Within the same reference period, NAFA submitted 132 
notifications to DNA, with a substantial increase in 2010-11.147 NAFA requested the 
Court  of  Accounts  to  conduct  an  audit  targeting  vulnerabilities  to  corruption. 
Between 2007 and 2011, 38 disciplinary sanctions were applied to NAFA staff, with 
15  reprimands  and  only  one  dismissal.  Given  the  high  level  of  risks  related  to 
corruption and other irregularities in the tax administration sector, expert advice has 
identified this figure as low. 

Specific risk areas prone to corruption identified by the Ministry of Finance concern 
tax-related matters and the issuance of documents (i.e. licensing/authorisations). The 
aim  for  the  future  is  to  limit  as  much  as  possible  the  direct  contact  between  the 
taxpayers and tax officials. A significant step was taken in this regard, by allowing 
the submission of tax declarations online.  

The  Ministry  of  Finance  has  recently  finalised an internal risk assessment analysis. 
Internal  control  bodies  are  functioning  within  NAFA,  the  Financial  Guard  and  the 
Customs Authority, conducting hierarchical checks on the reports and the activity of 
the officials. This has had to be taken forward at a time of substantial reorganisation 
for NAFA, Financial Guard and Customs, with a considerable reduction of staff148. 
In  July  2012,  NAFA  set  up  an  integrity  directorate  tasked  with  the  prevention  and 
fight against corruption within the Agency. The detailed responsibilities of the new 
directorate are still to be determined. 

The Fraud Investigation Service within the Romanian Police focused in recent years 
on  number  of  vulnerable/risk  areas  (e.g.  public  procurement,  healthcare  sector, 

145 

146 
147 

148 

The  risk  areas  identified  following  this  assessment  were:  traffic  police,  border  police,  structures  of 
directorate for driving license and vehicle registration, public order police and public procurement. 
During 2007-2011, 209 criminal files were initiated based on the reports registered through this line. 
There were38 notifications from NAFA to DNA in 2010 and 73 in 2011, as compared to only 2 in 2007, 
10 in 2008 and 9 in 2009. 
In the last two years approximately 4,000 posts were cut.  

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38 

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education).  This  approach  has  not  however  been  followed  as  a  systematic, 
nationwide  approach.  Between  2007  and  2011,  the  Fraud  Investigation  Services 
notified 9,205 criminal files regarding corruption offences to the prosecutors’ offices 
(including  DNA).  Surprisingly,  the  number  of  ex  officio  actions  dramatically 
decreased from 100% in 2007, 85% in 2008 and 95% in 2009, to 50% in 2010 and 
28%  in  2011.  Financial  investigations  remain  a  weakness  and  access  to  databases 
across the country is still problematic, although some efforts are being taken in this 
regard (e.g. setting up of a national centralised database of immovable property). 

Over  the  last  five  years,  a  series  of  measures  have  been  taken  by  the  General 
Prosecutor’s Office to intensify the fight against petty and medium level corruption 
by the regular prosecutors’ offices countrywide. In 2008, the Public Ministry carried 
out an assessment of the indictments issued in corruption cases and concluded that at 
the  time  prosecutors  had  a  more  reactive  rather  than  proactive  approach  in  the 
prosecution  of  these  cases.  Consequently,  the  Prosecutor  General  issued  an  order 
through which a  network of prosecutors specialised  on corruption cases  was set  up 
nationwide.  The  Prosecutor  General  also  required  county  prosecutors’  offices  to 
develop  their  own  anti-corruption  strategies,  based  on  risk  assessments  and  in  line 
with  the  intelligence-led  policing  model.  The  General  Prosecutor’s  Office  monitors 
the implementation of the local anti-corruption strategies. Moreover, new evaluation 
criteria for prosecutors were adopted. Some changes have resulted in the prosecutors’ 
approach, delivering operational improvements, reflected by a significant increase in 
the  number  of  investigations  and  indictments  by  the  regular  prosecutors'  offices.149 
The General Prosecutor’s Office also reports an increase in the complexity of cases 
handled. Nevertheless, these measures and their effective implementation remain in 
their  infancy.  The  introduction  of  similar  approaches  (i.e.  prioritising  corruption 
cases,  setting  up  police  networks  specialised  on  corruption  and  encouraging 
activeness in detection of corruption cases) by the police would assist in this task. 

The  incrimination  of  conflict  of  interest  proved  to  be  ineffective  so  far.  Between 
2007 and 2011 there were very few such cases in which indictments were issued. Just 
25 indictments were issued, the vast majority by DNA and very few by the regular 
prosecution.150  

Looking back over the past years at the actual impact of the overall anti-corruption 
measures  taken,  there  is  a  clear  imbalance  between  repressive  and  preventive 
measures.  The  main  focus  of  the  anti-corruption  drive  so  far  has  been  on  law 
enforcement. While the criminal law side is crucial in setting a clear regime which 
will  help  to  encourage  a  change  of  mentality,  a  successful  anti-corruption  policy 
cannot  succeed  without  effective  and  coherent  preventive  mechanisms.  In  this 
context,  in  the  last  five  years  the  progress  made  in  the  effectiveness  of  internal 
control mechanisms is rather limited and inconsistent, with considerable variations in 
the  results  reached  from  one  sector  to  the  other  and  major  gaps  in  internal  control 
bodies and procedures.  

In spite of a number of inter-institutional cooperation protocols and well established 
cooperation  channels  between  some  of  the  institutions,  overall  cooperation  and 
coordination  of  anti-corruption  actions  is  still  weak.  There  seems  to  be  an 

149 

150 

The number of persons indicted for corruption offences increased from 541 in 2007 to 934 in 2010 and 
1119 in 2011.  
DNA issued 16 indictments. The regular prosecution issued only 9 indictments.  

EN 

39 

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environment  of  mutual  distrust  notably  between  control  institutions  and  law 
enforcement. 

The control mechanisms should also be one of the main suppliers of information for 
law enforcement on public corruption. Nevertheless, the control mechanisms submit 
a  very  limited  number  of  notifications  to  prosecutors’  offices.  In  respect  of  the 
information provided to the DNA, with the exception of GAD, the Financial Guard 
and  the  money  laundering  authorities,  all  other  control  mechanisms  provided  very 
few notifications in the past five years. Just five notifications were forwarded by the 
National  Authority  for  Regulating  and  Monitoring  of  Public  Procurement 
(ANRMAP),  27  from  the  Court  of  Accounts  and  even  less  from  internal  control 
bodies of various ministries and national agencies. 

There  are  wide  discrepancies  between  the  anti-corruption  strategic  approaches  and 
commitment from one sector to the other.  

The  National  Integrity  Centre  (NIC)  is  an  independent  public  advisory  body  on 
corruption  run  in  cooperation  with  civil  society.  In  order  to  further  support  its 
activities,  a  Protocol  was  concluded  between  the  Association  for  Implementing 
Democracy (AID)  –  the civil society partner – and the Ministry for Administration 
and Interior in November 2007 and new premises and facilities ensured the Centre's 
continued  activity.  Since  then,  the  Centre  has  promoted  a  number  of  initiatives. 
These  have  included  training  but  also  the  establishment  of  anti-corruption  action 
groups and the hosting of debates in each county, bringing together representatives of 
anti-corruption  institutions  and  civil  society.  NIC  promoted  new  preventive  actions 
in  a  number  of  risk  areas,  such  as  video-surveillance  on  traffic  police  cars;  video-
surveillance  of  the  baccalaureate  exam;  a  joint  project  with  the  Ministry  of  Health 
focusing on integrity and good governance in the healthcare system; measures agreed 
with the Ministry of Regional Development and the Ministry of Transport; training 
on public procurement for civil servants from the Ministry of Education, Ministry of 
Health,  Customs  and  the  Financial  Guard;  and  preventive  measures  in  the 
educational  system,  working  with  high-school  students.  The  work  of  the  NIC  has 
been  supported  by  EU  funds.  The  current  project  financing  is  due  to  expire  this 
summer. Future financing has not yet been confirmed.  

European  funds  have  also  financed  a  recent  study  on  corruption  in  local  public 
administration  commissioned  by  the  Ministry  of  Administration  and  Interior’s 
Central Unit for Public Administration Reform. This study was accompanied by the 
production  of  best  practice  guides.  EU  funds  have  also  been  obtained  to  assist  the 
Ministry of Regional Development and Tourism in strengthening its anti-corruption 
mechanisms. 

In  the  education  sector  some  important  measures  were  taken  in  recent  years,  from 
enhanced checks and more rigorous prevention measures applied at important exams 
such as the baccalaureate or the accreditation exam for teachers, to robust measures 
to improve  accreditation of private universities. For the baccalaureate exam, video-
surveillance  was  used  in  exam  rooms.  Following  a  pilot  project  in  Galati,  video-
surveillance  was  introduced  countrywide  in  2011.  At  the  2011  baccalaureate  exam 
the success rate decreased by 50% as compared to the previous year. The sanctions 
were also increased in the cases where the legal requirements for the exam were not 
met. In two counties, prosecutors were notified in relation to potential criminal cases. 
the 
Another  vulnerable  sector  where  new  measures  were 
accreditation  exam  for  professors  for  primary  and  secondary  education.  Due  to 

taken  concerns 

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40 

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additional safeguards introduced in the verification process, for the first time in the 
history  of  this  exam  a  number  of  positions  open  for  competition  were  not  filled. 
Another  risk  area  identified  by  the  Ministry  of  Education  concerned  the  university 
graduation  diplomas.  A  new  obligation  was  introduced  for  cancelling  the  diplomas 
issued  fraudulently.  Over  the  past  five  years,  the  Ministry  of  Education  carried  out 
several  evaluations  of  corruption  vulnerabilities  in  order  to  ensure  a  holistic  anti-
corruption  policy  and  to  focus  notably  on  prevention  measures,  including 
establishing ethics councils and commissions. An updated risk assessment will form 
the  basis  of  the  sectorial  anti-corruption  strategy  for  the  education  system.  The 
Ministry  of  Education  is  also  the  beneficiary  of  a  structural  funds  project  on  the 
development of the sectorial anti-corruption strategy, which provides the opportunity 
to deepen the work to develop an effective policy for prevention of corruption in the 
education sector. 

Prevention  measures  in  other  sectors,  notably  healthcare,  public  procurement,  local 
administration remain less comprehensive. 

In  the  health  sector  some  important  projects  have  now  been  launched  or  are  in 
preparation, but results remain to be seen. One such project is supporting the creation 
of  an  integrity  department  within  the  Ministry  of  Health.  This  department  was 
formally  created  in  July  2011  and  is  tasked  to  prevent  and  combat  fraud  in  the 
procurement of medical services and equipment, and monitor the budgetary process 
for  each  health  institution  subordinated  to  the  Ministry  of  Health.151  Some  first 
controls  have  been  launched,  in  partnership  with  the  Ministry’s  control  unit, 
identifying  important  variations  in  units'  costs.  However,  the  operationalisation  of 
this structure has been slow. It has been held back in particular by a lack of human 
and financial resources.  

This  integrity  department  will  also  not  address  the  issue  of  informal  payments.  A 
further  project  is  therefore  now  foreseen  to  raise  awareness  about  patients'  rights, 
with a view to tackling the supply side of informal payments to medical practitioners. 
Following  the  adoption  of  a  law  on  co-payment  of  certain  medical  services,  as  of 
2012  Romanians  will  have  to  pay  a  share  of  the  medical  services  costs  through 
coupons.  The  Ministry  of  Health  has  also  adopted  a  centralised  risk  register  and 
identified  a  number  of  sensitive  positions  within  the  Ministry  and  its  subordinated 
units  for  which  rotation  schedules  were  developed.  However,  despite  these 
initiatives, there are still considerable obstacles to vigorously fighting corruption in 
this sector, with an established tradition of petty bribes. 

In 2008, on the occasion of the local elections, the civil society Coalition for a Clean 
Governance  carried  out  a  monitoring  of  the  electoral  campaign  for  presidents  and 
county councils and found systemic integrity problems. Fifty-four of 150 candidates 
had integrity issues, but nevertheless 11 of these candidates were elected. A similar 
exercise was carried out by the Coalition for a Clean Romania for the local elections 
of 2012, singling out candidates in a number of counties who had integrity issues152. 

151 

152 

Its  role  is  to  detect  fraud  and  corruption,  propose  rules  on  incompatibilities,  conflict  of  interest  and 
integrity  of  staff  within  the  healthcare  system,  take  preventive  measures,  monitoring  the  outcome  of 
corruption  cases  within  healthcare,  carry  out  risks  assessments,  and  develop  sectoral  anti-corruption 
strategies and action plans 
For  example,  candidates  under  investigation  or  indicted  for  corruption offences,  candidates  investigated 
by ANI for conflict of interest and incompatibilities. 

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41 

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In  the  local  elections  of  2012,  two  mayors  were  elected  whilst  under  preventative 
detention agreed by the courts. 

Except the Ministry of Interior who implemented a mechanism for whistle-blowers' 
protection,  over  the  past  five  years  the  progress  made  in  the  implementation  of 
whistle-blowers  policies  in  public  administration  was  almost  non-existent.153  The 
cases  based  on  whistle-blowers'  reports  sent  to  court,  including  by  the  Ministry  of 
Interior, remain very scarce.154  

The  National  Agency  for  Civil  Servants  (NACS)  organised  various  trainings  and 
implemented  a  corruption  risk  management  system  based  on  which  a  Corruption 
Risks Register was set up in 2010 and updated in December 2011. The register now 
comprises 17 risk areas. 

The  independent  assessment  of  the  previous  national  anti-corruption  strategies 
appreciated  in  particular  the  introduction  of  ethical  counsellors  at  central  and  local 
level as an important step towards introducing more preventive-based anti-corruption 
efforts in public institutions. The 'ethical counsellors' concept was institutionalised in 
2007. All public institutions and authorities are obliged to appoint such counsellors. 
The  overall  network  expanded  from  36  members  in  2007  to  915  in  2011,  yet  this 
remains significantly less than the number of public institutions. Since 2008, NACS 
assesses  on  a  regular  basis  (i.e.  twice  per  year)  the  compliance  with  the  rules  of 
conduct for civil servants, ethical standards and disciplinary proceedings.  

In  the  past  five  years  (2007-2011),  3,678  complaints  were  registered  by  NACS 
against civil servants at both central and local level. There is no particular  trend in 
the  evolution  of  the  number  of  complaints.  2011  in  particular  registered  a 
considerable decrease in the overall number of complaints received (50% lower than 
previous  year).  Of  these,  disciplinary  sanctions  were  applied  in  1,992  cases.  There 
are  no  available  statistics  on  the  nature  and  seriousness  of  breaches  found.  The 
reprimand  remained  the  main  disciplinary  sanction  applied  (50%  of  the  overall 
sanctions  applied).  Dismissals  were  ordered  in  only  6%  of  the  cases  when 
disciplinary sanctions were applied. 

Asset recovery and the prosecution of money laundering  

As  far  as  asset  recovery  is  concerned,  some  measures  were  taken  by  the  General 
Prosecutor to encourage a more proactive approach in financial investigations for the 
detection,  freezing  and  recovery  of  tainted  assets.  Through  a  joint  order  of  the 
General  Prosecutor  and  the  Minister  of  the  Interior,  standardized  procedures  were 
established for identification and seizure of assets during investigations, including a 
checklist of main steps to be taken in a financial investigation. Training sessions on 

153  MoI reported 338 notifications from 243 whistle-blowers between 2006 and 2011. Most notifications (144 
from  97  whistle-blowers)  come  from  GAD.  In  November  2009,  a  Transparency  International  study  on 
whistle-blower protection, 'Alternative to Silence, Whistle-blower Protection in 10 European Countries', 
concluded  that  in  Romania,  'since  2004,  public  sector  whistleblowers  have  been  protected  by  a 
comprehensive  law  which  takes  priority  in  case  of  conflict  with  other  legal  provisions.  However,  the 
number  of  whistle-blower  cases  in  Romania  is  still  low,  owing  largely  to  the  socio-cultural  context. 
Whistle-blowing  is not well  known by  the public  or  not  sufficiently  appreciated.  Civil  society  has  tried 
several approaches to improve the take-up of the law, but the promotion of whistle-blower mechanisms 
still requires concentrated effort. Weaknesses remain at the internal enforcement level of institutions or in 
the levels of media coverage and awareness of whistleblowing'. 
One case sent to court by MoI and six by the Ministry of National defence. No other cases reached courts 
from other institutions. 

154 

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42 

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this  topic  were  also  organised  for  the  prosecutors  countrywide,  notably  within  the 
framework of EU-funded projects. However, European Commission expert missions 
have  explored  the  degree  of  common  understanding  of  how  to  follow  areas  of 
particular  interest  such  as  financial  investigations  and  money  laundering  when 
visiting the prosecutors' offices outside Bucharest, and have concluded that this is as 
yet far from being realised.  

Steps were taken to establish central electronic databases of movable and immovable 
property.  An  integrated  electronic  cadastre  and  land  book  system,  centralised  at 
national  level,  has  been  established  following  a  process  which  started  in  2006  and 
ended  in  December  2011.  Approximately  30%  of  the  land  books  are  currently  in 
electronic format. Further input of data and conversion of data into electronic format 
is  ongoing.  However,  the  National  Agency  for  Cadastre  and  Land  Register  faces 
serious  budgetary  challenges  in  the  finalisation  of  this  process.  Currently,  a  rather 
cumbersome  access  to  data  on  both  movable  and  immovable  property  countrywide 
also acts as a deterrent for a more proactive approach of the prosecutors.155   

The  new  law  on  extended  confiscation  adopted  by  Parliament  in  March  2012  may 
open  new  opportunities  for  a  change  in  attitude  of  the  prosecutors  in  indentifying 
tainted assets and in interpreting in more open way the provisions of the Constitution 
regarding the presumption of licit origin of property. 

New  legal  provisions  were  adopted  to  improve  the  management  of  seized  assets, 
granting powers  to realise frozen  property, including when it is likely to decline in 
value or become uneconomical to maintain and ensure that the value of the assets is 
secured for later confiscation. 

As far as statistics on seizures, the General Prosecutor’s Office reported assets worth 
approximately  €587  m  seized  between   2007-2011,  with  €234  m  frozen  in  2011 
alone,  nearly  seven  times  more  than  in  2007.  However,  it  would  seem  that  this 
increase  is  also  predominantly  due  to  certain  specialised  prosecution  offices  and  a 
number of large scale operations and not necessarily to an overall intensification of 
successful financial investigations across the board in all cases156. Moreover, despite 
large scale seizures, these seizures have not translated into a convincing track record 
of  confiscations.  Despite  improved  results  on  2010,  in  2011  courts  ruled  the 
confiscation  of  just  €4.75m,  whilst  a  me re  €340,000  was  actually  confiscated  (see 
above)157  

In order to comply with Council Decision 2007/845/JHA an Asset Recovery Office 
(ARO)  was  established  within  the  Romanian  Ministry  of  Justice  and  became 
operational  in  January  2011.  The  new  ARO’s  tasks  are  as  follows:  operative 
exchange  of  data  with  other  AROs  in  the  EU  and  CARIN  Member  States, 
identification and dissemination of good  practices and promotion  of public policies 
in the criminal field, notably as regards fight against corruption and organised crime. 

155 

156 

157 

Such  data  can  be  accessed,  but  through  separate  requests  addressed  to  various  county  registers  and  not 
through a single user-friendly electronic database or interface. 
In the Annual Report of the Public Ministry for 2011, as well as the Follow-up Evaluation Report on the 
Fifth  Round  of  Mutual  Evaluations  on  financial  crimes  and  financial  investigations,  GENVAL,  EU 
Council,  April  2012,  it  is  reported  that  in  a  single  case,  in  2011,  there  were  135  immovable  properties 
seized along other assets for the recovery of a prejudice of approximately 80 million euros. 
In 2010 the Courts ruled the confiscation of approximately €1.8m of criminal assets, whilst approximately 
€200,000 was actua lly confiscated.  

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The  ARO  dealt  with  86  requests  in  2011  (57  from  corresponding  AROs  in  EU 
Member  Statesand  29  from  Romanian  authorities).158    In  the  first  two  months  of 
2012,  17  files  were  registered  (10  from  foreign  AROs  and  7  from  Romanian 
authorities).  

Prosecution of money laundering remains scarce. The General Prosecutor took some 
measures  to  ensure  that  money  laundering  is  now  treated  as  a  priority  area  by  the 
prosecutors, including the prosecution of money laundering as a stand-alone offence. 
With regard to the latter, there was a single court decision issued on such a case in 
2009  in  first  instance  that  remained  final  in  2011.  Another  case  is  in  court.  The 
General  Prosecutor  issued  an  order  in  2011  requiring  all  prosecutors’  offices  to 
designate  prosecutors  specialised  on  money  laundering,  tax  fraud  and  smuggling 
cases.  A  legal  opinion  of  the  General  Prosecutor  distributed  to  all  prosecutors 
countrywide  concluded  that  prosecution  of  money  laundering  as  a  stand-alone 
offence  is  possible  under  the  current  legal  framework  and  made  a  number  of 
recommendations on how evidence may be gathered in this case.  

An increase in the number of overall indictments in money laundering offences may 
be noted in the last year, from 23 indictments against 96 defendants in 2007 and 21 
against  89  defendants  in  2010  to  49  indictments  against  230  defendants  in  2011. 
However, there have been no further reported indictments of money laundering as a 
stand-alone  offence.  Overall,  during  2007-2011  only  42  convictions  against  nearly 
100 defendants were achieved for money laundering offences.  

The  National  Office  for  Prevention  and  Fight  against  Money  Laundering  and 
Terrorism  Financing  (NOPFMLFT)  has  focused  on  improving  the  quality  of  their 
notifications  and  responses  to  the  prosecutors.  The  prosecutors  seem  to  appreciate 
the  responsive  nature  of  the  Office,  though  experts  have  indicated  that  it  could  be 
more proactive.  

Fraud against EU funds 

In 2007 and 2008, through various legislative amendments, the competences of the 
Department for the Fight against Fraud (DLAF) were further streamlined, including 
regarding its role as anti-fraud coordinating service in Romania. In 2009 and 2010, 
DLAF  entered  a  period  of  legal  vacuum,  due  to  unconstitutionality  rulings  on  its 
legal basis. In May 2011, DLAF legal basis was restored through the adoption of a 
new  law  on  its  organisation  and  functioning  and  a  government  decision  on  its 
international regulation, which includes provisions on cooperation with OLAF. 

In 2007-2011, DLAF carried out 497 checks. Of these checks, 91 were carried out ex 
officio.  However,  there  were  no  ex  officio  checks  in  2009  and  2010,  and  in  2011 
there  were  only  two  such  cases.  Most  of  the  checks  are  conducted  following 
notifications  from  prosecutors  (40%)  and  managing  authorities  (24%).  DLAF 
submitted  256  control  reports  to  prosecutors  between  2007  and  2011.  In  the  same 
reference  period,  prosecutors  issued  73  indictments  which  led  to  42  convictions  by 
the courts. Scope for further improvements remains. 

158 

These requests regarded 256 natural persons (of whom 108 Romanian citizens and 157 foreign citizens) 
and 80 legal persons (41 from Romania and 39 from abroad). Following the requests, the following assets 
were  identified:  12  vehicles,  6  buildings,  16  apartments,  17  land  properties,  75  bank  accounts,  17 
companies in which the persons in question had shares and 3 authorised natural persons.  

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Between 2007 and 2011 prosecutors opened investigations in 223 cases of EU fraud. 
The overall track record in prosecuting offences against the financial interests of the 
EU  could  be  further  strengthened  and  steps  taken  to  ensure  a  more  proactive 
approach and less rigidity when interpreting the procedural rules.   

In  2011,  the  Commission  drew  attention  to  over  60  cases  of  possible  fraud  (i.e. 
suspected manipulations of tenders and submission of false offers) brought by OLAF 
to  the  attention  of  the  Romanian  authorities.  It  remains  to  be  seen  what  follow-up 
will be given to these cases.  

Within  the  CVM,  the  Commission  evaluates  progress  in  the  implementation  of 
public procurement rules, as weaknesses in this area are recognised as an important 
source  of  corruption.  Administrative  capacity  and  practice  and  the  ability  of  the 
administrative  control  authorities  and  the  judiciary  to  protect  against  irregularities, 
misuse  of  funds  and  fraud  are  elements  of  the  Commission’s  considerations  in  this 
context. 

Since 2010, several audits by the Commission highlighted substantial shortcomings 
in the Romanian public procurement system which were not prevented, detected or 
corrected by the national management and control system and hence reflect systemic 
deficiencies. Some of these shortcomings led to temporary interruptions of payments 
within  Structural  Funds  to  protect  the  financial  interests  of  the  EU.  In  order  to 
address  these  weaknesses,  the  Commission  carried  out  an  assessment  of  the 
Romanian public procurement system in 2011. 

The  Commission's  evaluation  of  the  Romanian  public  procurement  legislation 
identified a lack of legal stability, due to frequent changes and legal inconsistencies 
and recommended the creation of a stakeholder committee and to launch a process of 
legal  consolidation.  The  Commission  also  identified  some  specific  weaknesses  in 
legislation on Public Private Partnerships (PPP) regarding the absence of an efficient 
coordination  mechanism  between 
the  National  Public  Procurement  Agency 
(ANRMAP) and the newly created PPP Unit. Moreover, there is a risk of duplication 
between  certain  provisions  of  the  PPP  law  and  the  existing  general  law  on  public 
procurement159. 

The Commission's assessment also identified inconsistent practices and shortcomings 
in  cooperation  among  the  key  institutions  in  the  public  procurement  area.160  This 
concerns  issues  such  as  an  insufficient  effectiveness  of  the  annual  public 
procurement  plans  and  overlaps  in  tasks,  inconsistent  practices  and  misalignments 
between the competent bodies in this area. These weaknesses are compounded by a 
deficit  of  resources  among  these  institutions,  inefficient  internal  procedures  and 
substantial  difficulties  with  a  proper  use  of  the  main  IT  tool  in  this  area,  the 
Electronic  Public  Procurement  System  (SEAP).161  These  difficulties  at 
the 
administrative  level  of  the  public  procurement  system  together  with  insufficiently 
unified and streamlined procedures contribute to excessive administrative burden for 
contracting authorities and are a source of delays and irregularities. 

159 
160 

161 

Government Emergency Ordinance 34/2006. 
The main public bodies in this area are the National Authority for Regulating and Monitoring of Public 
Procurement  (ANRMAP),  the  Unit  for  Coordination  and  Verification  of  Public  Procurement 
(UCEVAP) and the National Council for Solving Complaints (CNSC). 
Problem  with  SEAP  include  insufficient  accuracy  and  completeness  of  data,  an  architecture  which  is 
not sufficiently user-friendly and issues of maintenance and property of the system. 

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The issue of conflict of interest within public procurement is of particular concern for 
the  Commission  and  has  also  been  the  core  issue  triggering  payment  suspensions 
under the Structural Funds. The Commission's assessment shows that the legislative 
basis  and  administrative  procedures  cannot  provide  sufficient  guarantees  for  an 
effective  protection  against  conflicts  of  interest  in  public  procurement.  Current 
prevention  and  control  mechanisms  are  difficult  to  enforce  or  not  sufficiently 
dissuasive  and  are  overall  not  suitable  for  an  effective  prevention  of  conflicts  of 
interest.  There  is  a  lack  of  pro-active  action  by  public  procurement  authorities  and 
insufficient cooperation with the National Integrity Agency and the judiciary.162 The 
legislative  amendments  adopted  in  2010  which  introduced  a  wider  definition  of 
conflict  of  interest  have  not  yielded  expected  results.  The  number  of  conflict  of 
interest situations detected by ANRMAP and UCEVAP is low and does not reflect in 
any way the realities.163 

Given  the  large  number  of  complaints  and  the  low  quality  of  tender  documents, 
Romania has taken some corrective measures by introducing ex-ante verifications of 
all tender documents by ANRMAP.164 In parallel, ANRMAP has started to prepare 
standard  forms  for  tender  documents  covering  the  main  sectors  of  public 
procurement, to support contracting authorities and reduce the current high number 
of errors in procurement documents.165  

These  individual  activities  will  have  to  be  integrated  into  an  overall  action  plan  by 
the  Romanian  authorities  in  response  to  the  evaluation  carried  out  by  the 
Commission in 2011 and its recommendations.  

6. 

DIRECT  SUPPORT  TO  THE  REFORM  PROCESS  FROM  THE  EU  AND  ITS  MEMBER 
STATES 

Substantial  support  has  been  made  available  to  Romania  in  the  area  of  justice  and 
home  affairs  in  the  years  before  and  after  accession.  Prior  to  accession,  from  2004 
the  PHARE  programme  made  available  over  €187m.  Since  accession  a  further 
€46.5m was made available under the Transiti on Facility, a significant proportion of 
which was available to support reform in justice and home affairs. These instruments 
supported  numerous  projects  and  capacity  building  measures,  including  projects  to 
enhance  the  capacity  of  the  Superior  Council  of  the  Magistracy  and  the  National 
Institute  of  the  Magistracy,  and  to  strengthen  the  fight  against  corruption,  with 
assistance provided to the National Anti-Corruption Directorate, the Public Ministry, 
the  National  Integrity  Agency,  and  the  Anti-Corruption  General  Directorate  of  the 
Ministry of Administration and Interior.  

The deadline for implementation of Transition Facility-financed measures expired in 
December 2010. Under the current Financing Period, the Commission has also made 

162 
163 

164 

165 

These findings are confirmed by complaints received by the Commission in 2012. 

Since  2007,  ANRMAP  has  notified  only  five  cases  to  DNA.  In  2011,  ANRMAP  identified  only  three 
potential conflicts of interest. In April 2011 allegations of conflict of interest in respect of EU funds led to 
a resignation of the Minister for Labour. Audits of EU projects led to the interruption in payments under 
one measure within Structural Funds due to conflict of interest and favouritism in public procurement.  
Amendments to the existing law on public procurement (see art; 33 of L. 279/2011 of 12 December 
2011, amending OUG 34/2006), by which ANRMAP shall verify the legality with regard to public 
procurement rules of all tender documents, before the publication of a tender notice.  
These actions are under way in the transport and environment sectors. 

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available  significant  support  under 
the  Administrative  Capacity  Operational 
Programme  of  the  European  Social  Fund.166  Judicial  reform  and  anti-corruption 
projects  totalling  over  €12m  have  been  contracted  and  are  in  various  stages  of 
implementation.  Beneficiaries  of  these  projects  include  the  National  Integrity 
Agency  and  the  Ministries  of  Justice,  Administration  and  Interior,  Regional 
Development and Tourism, Health and Education.  

Many of the projects implemented have directly assisted with reforms necessary for 
the  CVM.  A  number  of  projects  currently  being  implemented  directly  address 
recommendations the Commission has made in the CVM Reports. Examples include: 

• 

• 

• 

€0.75m  financing  provided  to   the  Ministry  of  Justice  for  an  independent 
analysis  on  the  functioning  of  the  Romanian  judicial  system.  This  analysis  is 
being  undertaken  by  the  World  Bank.  It commenced in March and should be 
complete  by  the  end  of  the  year.  The  findings  and  recommendations  will 
provide a foundation for the future direction of judicial reform 

€4.4m  financing  provided  to  the  Nationa l  Integrity  Agency  to  upgrade  the 
Agency’s information system and to strengthen the efficiency of the processing 
of asset and interest declarations. Implementation began in February this year 
and  the  project  will  last  two  years.  The  investments  will  strengthen  the 
administrative capacity of the Agency and therefore the efficiency of the fight 
against corruption 

€1.58m  financing  provided  to   the  Ministry  of  Health  to  support  an  integrity 
unit  within  the  Ministry  of  Health.  Once  fully  operational,  the  structure  will 
strengthen  the  prevention  and  detection  of  corruption  within  health  sector 
procurement. 

Financing  from  the  European  Social  Fund  has  been  complemented  by  grants 
provided under the Prevention of and Fight against Crime, Civil Justice and Criminal 
Justice Support Programmes.  

Over  the  years  important  support  has  also  been  supplied  by  Member  States.  These 
bilateral  projects  have  assisted  a  wide  range  of  institutions  and  covered  a 
comprehensive  range  of  issues  connected  to  judicial  reform  and  the  fight  against 
corruption.167 Recent projects have included support to improve the pursuit of money 
laundering  and  the  recovery  of  the  proceeds  of  crime,  strengthen  communication 
between the judiciary and the mass media, and prepare for the implementation of the 
new  codes.  A  large  number  of  Member  States have  been  involved  in  assistance  to 
Romania in this  area since accession.  Significant assistance has also been provided 
by other states and international organisations. 

166 

167 

This Operational Programme has a total value of 244.7 M EUR, of which the Community funding totals 
208 M EUR. 
Beneficiaries have included the Ministry of Justice, the courts, the Superior Council of the Magistracy, 
the National Institute of the Magistracy, the Public Ministry, the National Anti-Corruption Directorate, 
the  National  Integrity  Agency,  the  Ministry  of  the  Administration  and  Interior  and  the  Customs 
Authority.  

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