COMMISSION STAFF WORKING DOCUMENT ROMANIA: Technical Report
Date: 2014-01-22
Institutions: European Commission
Subjects: Romania, corruption, independence of the judiciary, judicial reform













EUR-Lex - 52014SC0037 - EN











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52014SC0037

COMMISSION STAFF WORKING DOCUMENT ROMANIA: Technical Report /* SWD/2014/037 final */









Benchmarks to be
addressed by Romania pursuant to Commission Decision of 13/XII/2006 establishing
a mechanism for cooperation and verification of progress in Romania to address
specific benchmarks in the areas of judicial reform and the fight against corruption:[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
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
Benchmark 3: Building
on progress already made, continue to conduct professional, non- partisan
investigations into allegations of high- level corruption
Benchmark 4:
Take further measures to prevent and fight against corruption, in particular
within the local government
List of acronyms
ANI: National Integrity Agency
ARO: Asset Recovery Office
CCR: Constitutional Court
CVM: Cooperation and Verification
Mechanism
DIICOT: Directorate for Investigating
Organised Crime and Terrorism
DNA: National Anti-Corruption Directorate
ECRIS: information system of the RO justice
system (for internal use)
HCCJ: High Court of Cassation and
Justice
MoJ: Ministry of Justice
NAC: National Audio-visual Council
NAS: National Anti-corruption Strategy
NIC: National Integrity Council
NIM: National Institute of Magistracy
SCM: Superior Council of Magistracy
WIC: Wealth Investigation Commissions 

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: a combination of on-the-spot dialogue with key
interlocutors, an ongoing 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. 

1.                      
          The Judicial Process 

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 consistency of the judicial process, as
well as the transparency and accountability of the judiciary. 
In
more detailed terms this pointed to adopting new Codes, implementing measures
to ensure the consistency of jurisprudence[2],
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. 

1.1.                
Judicial independence
1.1.1.          
Legal framework and guarantees

The Constitution of
Romania establishes the principle of the separation and balance of powers, and
the independence of the judges.[3]
 The Constitutional Court of Romania is the guarantor of the supremacy of the
Constitution and is independent from any other authority. It was instrumental
in July 2012 in restoring the balance of powers.[4]
It has also been important as an authority to which the Superior Council of
Magistracy (SCM) or the High Court of Cassation and Justice (HCCJ) can refer
key issues surrounding respect for court decisions. [5] 
The Constitution of
Romania further establishes that the Superior Council is the guarantor of the
independence of justice.  In practice whenever a judge, prosecutor or judicial
institution considers its independence is threatened, it can appeal to the SCM.
The SCM examines the allegations, on the basis of a report by the Judicial
Inspection. If the SCM considers the allegations are founded, it issues a
statement in defence of the magistrate or the institution, published on its
website. These statements are usually not relayed further by the press. The SCM
has put increasing emphasis on this function. In 2013, the Judicial Inspection
registered 17 notifications referring to the need to defend the independence,
impartiality and professional reputation of magistrates or the independence of
the judiciary.[6]
Judges and prosecutors
who were victims of criticism by politicians or politically motivated media
attacks have welcomed the support of the SCM; although neither the SCM nor the
Ministry of Justice provides financial support for magistrates to bring their
case to court.[7]
The SCM also considers that its actions in defence of the independence of justice
have helped this issue to be taken more seriously by citizens and politicians.
The new Criminal Code planned to enter into force in February 2014 has a
provision criminalising attempts in certain circumstances to pressure the
judiciary.[8]
In addition, the SCM
also examines possible threats to the independence of justice within new laws
or legislative proposals, as a logical consequence of its role under the
Constitution. Similarly, the SCM has sought to have its role recognised in the
process of revision of the Constitution on topics related to the judiciary. 
The process of reform
of the Constitution handled by the Parliament started in the spring of 2013 and
entered a more public phase in summer 2013. The process was dominated by work
in Parliament, with limited opportunities for NGOs and the public to be
involved in the debate in terms of seeing how the variety of ideas put forward
might be translated into Constitutional provisions. At the end of May, the
Romanian Parliament Constitutional review Commission finalised a first draft,
which was shared with the Council of Europe Venice Commission and the European
Commission in June. The intention of the Parliament at that time was to adopt
the new Constitution and hold a referendum in the autumn 2013. (Once the
Parliament adopts the new bill, revision shall be final after approval by a
referendum held within 30 days).
In parallel the law on
referendum was modified in order to allow for a lower level of participation and
approval. However the Constitutional Court ruled that the new referendum law
could enter into force only one year after its final signature.[9] 
As a result, the whole
revision process was put on hold, including discussions with the Venice
Commission on a new draft. The process since then has been characterised by a
lack of clarity about the likely next steps, and whether the delay will allow a
wider public debate to take place. It appears that the process in Parliament is
likely to restart in the coming weeks. There remains a commitment to consult
with the Venice Commission in particular, and the Romanian government has on a
number of occasions underlined its intention to ensure that any revisions are
in full respect of the values upon which the EU is founded, including in
particular the respect for the rule of law and the separation of powers.   
In June 2013, at a
relatively late stage in the process, the SCM was invited to debates of the
Joint Commission of the Senate and the Chamber of Deputies on the revision of
the Constitution. The SCM took the opportunity to express concerns relating to
certain new articles in the draft amendment of the Constitution relating to the
judiciary. It is not clear whether these comments will be taken on board in
future drafts.  The draft made available to the Commission in June 2013 raised
a number of issues, notably in this area.[10],[11],[12] The
Commission mentioned on several occasions to the Romanian authorities that the
process of constitutional reform should be transparent and should be made in
full respect of the values upon which the EU is founded, including in
particular the respect for the rule of law and the separation of powers. It
should also be subject to a broad consultation of stakeholders as well as of
the Venice Commission. The Romanian authorities made clear their intention to
keep the European Commission informed.

1.1.2.          
Political and media pressure on the judiciary

Criticism by
politicians and politically motivated media attacks on individual judges,
prosecutors and members of their families, and on judicial and prosecutorial
institutions, have been a particular concern and have been raised by both by
the Commission and the Council.[13]
The number and strength of such attacks seems to have decreased since July
2012, but examples continue. This includes cases where judicial institutions
and magistrates have been criticised directly in the wake of judicial decisions
about important political personalities.   This contrasts with practice in
other Member States, where in line with the principle of separation of powers
and judicial independence, explicit or implicit rules or conventions limit the
extent to which politicians comment on judicial decisions.[14] 
In respect of 2013, the
Constitutional Court also reported that attacks against the court and its members,
although less vociferous than in summer 2012, remained an issue. 
The National
Audiovisual Council (NAC) has received complaints about broadcasting outlets relating
to the justice system and has adopted sanctions in some cases.[15] The
SCM referred four cases to the National Audiovisual Council. 
In autumn 2013, the
Ministry of Justice organised a first meeting with investigative journalists in
order to provide better information on the justice system, education on the
independence of the judiciary and to establish a dialogue and better cooperation
between the journalists and courts. The objective was to develop better mutual
understanding and respect. 
Political pressure in
appointment decisions is dealt with in section 1.5 below.

1.2.                
Reform of the legal framework and the new Codes

The new Civil Code
entered into force on 1 October 2011. The new Code of Civil Procedures entered
into force on 15 February 2013, with some provisions to become
operational on 1st of January 2016.[16]  The
new Criminal Code and the new Code of Criminal Procedures are planned to enter
into force in February 2014. The July 2012 CVM report underlines that, when
completed, this should represent a substantial modernisation of the Romanian
legal system.[17]
Much of the emphasis has been on implementation. The leadership of the
judiciary, as well as the Ministry of Justice, has recognised the importance of
the efforts needed and courts have been encouraged to report on possible
difficulties. The SCM, HCCJ and the General Prosecutor also see the
implementation of the new codes as one of their priorities.    
The SCM coordinates an
inter-institutional working group whose aim is to prepare the system and civil
society for enforcing the new provisions of the four new codes. The Minister of
Justice secured additional budget and posts for supporting the implementation
of the new codes, in line with the Memorandum adopted by the Government in 2012
(for 2013 – 2015: 414 judges and 604 auxiliary personnel).
Preparations for the
entry into force of the Code of Civil Procedures were uneven. Much attention
was given to the possible need for extra judges and clerks, but the impact was
not assessed before finalising the legislation and the opportunities for key
outside stakeholders to identify important questions were few. Learning from
this experience, preparations for the entry into force of the new Criminal
Codes within the judiciary are more intense and specific issues are the subject
of pre-emptive action.[18]


1.2.1.          
Civil Procedure Code

The principles which
underlie the new Code of Civil Procedure are to ensure simplification and speed
of civil procedures and to improve service and process.  
Since July 2012, there
has been a substantial training effort for magistrates and clerks on the new
civil codes, with more than 150 training activities and about 5000
participants. The training is organised mainly by the National Institute of
Magistracy and the National School of Clerks, under the oversight of the SCM.[19],[20] The
training activities included conferences, decentralised seminars, and
train-the-trainer sessions. Material from the trainings is also available
on-line for e-learning. The initial training for magistrates and clerks has
also been adapted to include training on the new codes.
The new Civil Procedure
Code applies to all new cases introduced after its entry into force on 15
February 2013. As a result all courts dealing with civil and administrative
cases are in a transition phase applying both old and new codes of civil
procedure, depending on the case.
Contacts with the SCM and
judges in different jurisdictions and different court levels have suggested
that delays in the judicial proceedings have increased since the introduction
of the civil codes – though many still feel this is a transitional effect only.
Judges and court managements seemed to be confronted with a series of
difficulties, organisational and legal. Not everyone was able to attend the
training, and it was not always accompanied by clear guidance on implementation.
Possibly as a consequence, there are reports that procedures are not being consistently
applied,[21]
and that public administration has not been well prepared for the changes.
However, it is also the case that both the SCM and the Minister of Justice
report that new efforts have been made in the course of autumn 2013 to correct
the situation in terms of resources and interpretation of the law.  The HCCJ has
also made specific efforts to define harmonised practices in civil courts and
systematisation of civil trials. 

1.2.2.          
Criminal Code and Criminal Procedure Code 

The introduction of the
new Code of Criminal Procedure will be a major undertaking:  all provisions are
directly applicable, and the code introduces two new institutions, the “rights
and freedom judge” and the “preliminary chamber” judge.  The rights and freedom
judge is to hear applications in relation to requests, complaints, searches,
preventive measures, provisional security measures and the behaviour of the
prosecutor.  The preliminary chamber judge is to verify the legality of
evidence gathered and the procedural acts undertaken in the course of the
prosecution. These new institutions are designed to reduce the types of
disputes which defendants in Romania have raised in the course of a criminal
prosecution, leading to the disruption and postponement of trials already
begun.  The idea is that by having such disputes resolved beforehand, the trial
will proceed more smoothly.
The new criminal codes
will also influence the fight against corruption. In addition to the two new
institutions described above, which should reduce the levels of appeals, there
are other relevant changes:
·        
Length of proceedings: there will be fewer
possibilities for second appeals, so final decisions could be reached quicker.
·        
Prescriptions and sentences: In general criminal
sentences are more favourable to the convicted in the new Criminal Code. When
there are shorter sentences, Romanian practice also means that the cases have a
shorter prescription period. As a result, there are ongoing prosecutions or
trials that may face prescription much earlier than originally planned. The
Prosecution services, the HCCJ, the SCM and the judicial inspection are
monitoring such cases and encouraging judges and prosecutors to accelerate
them. By end of November 2013, DNA had identified 10 files which might be
affected by this issue, and DIICOT had identified 7. The HCCJ has also advanced
the hearings of some high-level corruption cases in order to ensure that a
final decision can be reached before the prescription deadline.
·        
Jurisdiction and level of courts:  The Tribunalele
will have jurisdiction in first instance for some conflict of interest cases. 
This will need to be monitored to ensure that this does not dissipate the fledgling
expertise in this area built in the Courts of Appeal and the attached
prosecutors. It would also be a new logistical call on ANI to have to defend
its cases before all these jurisdictions.  
·        
Investigation techniques: The Codes define new
special investigation techniques. DNA is drafting practice guides for its
prosecutors. There are however concerns from DNA and DIICOT regarding new
restrictions concerning special investigation techniques, in particular for
investigating Ministers[22]. 
The application of the
new codes will probably face a series of problems in law and in practice. Most
actors expect delays in the proceedings in the first phases of the
implementation. This will need to be monitored to ensure the problems can be
resolved quickly.
Most actors consider
that preparatory efforts undertaken so far are more substantial than for the
code of civil procedure: 
·        
Centralised and decentralised training. The SCM
encourages courts throughout the country to ensure that every judge and
prosecutors has gone through at least one training. At the level of the HCCJ
and the courts of appeal, specific seminars have been organised;
·        
Organisational preparations by the criminal
sections at all levels of courts for implementing the two new institutions, as
well as by the Prosecution;
·        
Filling vacancies, including the new provision
made for judges and court clerks;
·        
Adaptations to the justice electronic management
system, ECRIS.
Judges and prosecutors
throughout the country were invited to discuss issues with regard to the new
codes, in order to anticipate potential problems. Several legal problems were
already discovered and these may lead to amendments of the codes or of the law
for the application of the Criminal Procedure Code still to be adopted before
the entry into force[23].
The latter also creates insecurity for the judicial system as the codes are not
fully stabilised. 
In December the
Romanian Parliament voted a series of controversial amendments to the Criminal
Code, which were ruled unconstitutional by the Constitutional
Court. This issue is dealt with in section 3.

1.3.                
Consistency of Jurisprudence and predictability
of the judicial process

Inconsistency and a
lack of predictability in the jurisprudence of the courts or in the
interpretation of the laws remains a major concern for the business community
and for wider society. This problem of inconsistent interpretation and
application of the law applies both to judges and prosecutors, with a
responsibility also on the public administration. The introduction of the Codes
is an opportunity to address this and an important incentive for progressing on
the problem of inconsistent interpretation and application of the law. The role
of the HCCJ is crucial in this process and it has taken it up as one of its
major priorities. The General Prosecution has also initiated in 2013 several
strands of work with the goal of ensuring the consistency of practice and
interpretation of the law in the prosecution services throughout the country. 

1.3.1.          
New procedural codes and role of the HCCJ 

The new Procedure Codes
refocus second appeals on their primary cassation purpose and reinforce the
role of the High Court in ensuring the consistency of jurisprudence. To
complement the appeal in the interest of the law, which can be used to resolve
the interpretation of the law when facing inconsistent judgements, the new
procedural codes also introduce a new, proactive mechanism for improving the
consistency of 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.
So far as appeals in
the interest of the law are concerned, these have been steady and for the time
being remain the main mechanism for ensuring the consistency of case law.  In
2011 there were 33; in 2012, 19; and in 2013, 21. The procedure is
well-established and appeals are solved within a legal deadline of three
months. The HCCJ publishes the cases on its website and in the Official Journal
(OJ).
The preliminary ruling procedure
is set out under Articles 519-521 of the Code of Civil Procedure. The Procedure
parallels the reference procedure in the Court of Justice of the European
Union.  The HCCJ has published guidelines, a model document for courts to use
and a model judgement concerning preliminary ruling requests.  Decisions are
binding to all courts when published in the OJ.
The HCCJ has sought to
encourage use of the new procedure, organising for example a video conference
in early March 2013 with all Courts of Appeal. So far the procedure has given
rise to only three requests under the Code of Civil Procedure. One case, a
reference from the Court of Appeal at Brasov, was settled in 2013. As this
mechanism is used by courts acting as last instance, preliminary rulings can
only be requested in relation to the new Code of Civil Procedure, which came
into force in February 2013.  The HCCJ expects a rapid acceleration of
references for rulings when the new Code of Criminal Procedure comes into
force.  

1.3.2.          
Management solutions and processes

Legislative reforms
alone will not solve inconsistent jurisprudence. The management of the
judiciary reported that tackling this problem is a priority for them, and they
are taking 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, these efforts are
made in the face of reluctance in some quarters to follow the jurisprudence or
guidance of superior courts.  One example to illustrate this problem is the
sentencing in corruption cases. Although sentencing guidelines exist, it seems clear
that many courts do not follow them (see below). It does not appear that a
clear, consistent and transparent process exists for the court management to
identify cases of failure to be consistent with established practice and ask
the judge concerned to explain why they decided to diverge from such norms in a
particular case. 
A consistent jurisprudence
in criminal cases is also dependent on the consistent practice in the
Prosecution, and the management of the Prosecution has a role in providing general
instructions and guidelines to the prosecutors on the way to fulfil their
action. As an example, prosecutors can be requested to prosecute systematically
certain crimes which have important public consequences and be advised to
request systematically a certain sentence for these crimes.[24]
Decisions “in
principle”
A third institutional
method of ensuring the consistency of jurisprudence is as a result of courts
discussing issues and reaching a consensus. This takes place both within and
between courts. In the High Court there are working groups in each section to
identify problems where a uniform approach would be desirable. The sections
vote if necessary and the two-thirds majority view is then sent to the Courts
of Appeal. They have no binding force in law but the rulings, which are sent
out together with the relevant legislation, should have a highly persuasive
force. The criminal sections of the HCCJ issue some six to seven
recommendations a month as to how differences in the jurisprudence should be
resolved.[25]

Similarly, at Court of
Appeal level, meetings of the sections of the court attempt to resolve
differences in interpretation, by majority vote if necessary.  This type of
informal attempt to resolve differences in the jurisprudence is seen as a
useful complement which could be extended more broadly. Another idea put forward
has been informal email networks, whereby judges can exchange views as to the
existence and resolution of problems in the jurisprudence. 
Analyses and guides
by the General Prosecution
At the Prosecution, consistent
practice has become a priority. The Public Ministry has seized the HCCJ on
several occasions for appeals in the interest of the law. It also regularly
analyses divergent cases and informs all prosecution offices at appeal courts
of the results of the analysis. A series of closed
decisions were analysed and re-opened including in the areas of conflict of
interest and copyright. The Research Bureau drafted about 100 study notes on consistency
in criminal law and criminal proceedings.
For the implementation
of the new Criminal Codes, following an analysis initiated in summer 2013, the
General Prosecution will draft a guide to encourage consistent practice.
Judicial inspection
In
2013, the judicial inspection increased its thematic controls in view of
detecting divergent practices between individuals or courts nationwide. 
Examples of recent thematic controls are: systems for allocation of cases;
systematic monitoring of cases for public procurement, corruption and fraud;
delegated judges to penitentiaries; and listening devices of prosecutors. Recommendations
for improvements and guidelines for consistent practice are then considered by
the SCM. 
Training
Unification of
jurisprudence is also part of the specialised training programmes for
magistrates. In 2013, it continued to be a priority for the continuous training
programme. In addition to the training seminars, the NIM also organised on-line
broadcasting of 5 of its most relevant training seminars on inconsistent
jurisprudence, available for all judges and prosecutors linked to the appeal
courts. 
Access to court
decisions throughout the country
The July 2012 report
pointed to continued problems in the access for judges to the court decisions
of all other courts of the country.[26] 
The intra-judicial information system ECRIS did not allow automatic access, making
it harder to combat a lack of consistency in the interpretation of the law. In November
2013, the SCM decided to grant access to ECRIS to all judges and court clerks.[27] 
All decisions of the
HCCJ are now available on-line on its website in the form of summaries of the
relevant decisions and integral text of the decisions rendered by the HCCJ. In 2013,
the HCCJ published:
·        
281 relevant decisions, described as a mechanism
of unification of jurisprudence, with in total 4090 relevant decisions published.
·        
17 344 integral decisions, with in total 92 766 integral
texts of the decisions published.
Progress is less clear
in efforts to publish all judicial decisions in a form available to both
outside professionals and the public at large. The publication of jurisprudence
accessible to all seems necessary for ensuring a transparent and accountable
judicial system, thereby increasing trust, consistency and predictability of
outcome. The current Jurindex system is obsolete. A new system to be set up
through the Foundation Romanian Legal Information System – RoLI – involving the
Bar Association, the SCM, the NIM and Notaries, is planned but is not available
yet. The target date is unclear, while there are doubts expressed by the
judiciary on the usefulness of publishing all decisions, notably for financial
reasons. Best practice involving the publication of all jurisprudence can be
found in many EU countries.
Legal
culture in following case-law
Efforts to address the
issue of consistency need to take account of the obstacle presented by legal
culture. This may be a particular problem in cases
starting at the level of the Judecatoria, where final appeal would come in one
of Romania's 15 Courts of Appeal. The concept is well
established in judicial administration literature, underlining how “local legal
culture” can hinder consistency and can only be addressed by strong leadership
and training. Experts consulted by the Commission noted a view prevalent in
many Romanian Courts that it is for the individual judge to interpret the Codes
without reference to the jurisprudence, contrary to
what is seen as standard practice in EU Member States, not limited to common
law systems.[28]
 The SCM does have the power to launch disciplinary action in serious cases.[29]

1.3.3.          
Quality and stability of legal framework

An additional
source of difficulties in the consistent application of the law relates to the
quality and the stability of the legal framework. Parliamentary procedure often
gives no space for proper assessment, consultation and preparation,
even when urgency is not clear.  Recent examples are several amendments to the
Public Procurement laws in the same year (some of them being retracted a few
months later), and substantial changes in the Criminal Codes adopted overnight
in December 2013, two months before their entry into force. 
In addition, the
Government adopts many laws through Emergency Ordinances (a consistent trend of
some 100 instruments per year, according to the Constitutional Court), thereby
bypassing the normal parliamentary process.[30]
Recent examples are the new Insolvency Code and the law on decentralisation.[31] In
October 2013, the Constitutional Court ruled that the adoption of a government
emergency ordinance for the new Insolvency Code was unconstitutional, thereby
annulling the law shortly after its adoption, and in general, there may be a
trend towards a more demanding interpretation of the Emergency Ordinance
conditions on the need to establish real urgency.  
The Ombudsman (People’s
Advocate) has the power to challenge abusive use of emergency ordinances. A new
Ombudsman was appointed in January 2013, who has recently resigned.  In May
2013, he reported that this Constitutional role represents only a very small
part of its activities (1 to 3 times a year maximum). 

1.4.                
Structural reform of the judicial system
1.4.1.          
Strategy for justice 

A
first draft of a Strategy for the Development of the Judiciary (2014-2018) was prepared
by the Ministry of Justice in September 2013. The draft strategy seeks to
incorporate the recommendations of the CVM, the World Bank’s Judicial
Functional Review[32]
and its Court Optimisation Study.[33] It
was drafted in close cooperation with the SCM and based on a consultation
process within the judiciary, with other legal professions and Civil Society
(NGOs) also involved. 
The draft
strategy aims at strengthening the current reforms and the judicial
institutions and at increasing public trust in the judiciary; it seeks to
improve the effectiveness of the courts and the functioning and professionalism
of all judicial professions active in the justice chain. It is also used as a
basis for discussion in the preparations of the programmes of the new EU funds
programming period. The Ministry of Justice is following up with an action plan
detailing the high level objectives included in the strategy, in view of having
both documents approved by the Government by the beginning of February. 
The overall goals
presented in the draft strategy – greater efficiency, institutional
strengthening, integrity, quality, transparency and access to justice – would
be consistent with the work done in other Member States and at European level, such
as with the performance framework developed by CEPEJ of the Council of Europe
and at the international level with the World Bank’s work as summarised in its
New Directions in Justice Reform 2012.[34]
The fundamental aims of increasing trust in the judicial system, respecting
judicial independence and promoting mutual respect between the judiciary,
executive and parliament are important points emphasised in previous CVM
reports. 
In order to improve
delivery and implementation, the draft strategy proposes to set up a system of
integrated management at the level of the judiciary with a joint monitoring
board consisting of the Ministry of Justice, the SCM, the HCCJ, the Public Ministry
and the DNA as part of the aim of achieving greater efficiency.  An important element for any future reform of the judicial system
would be to increase the capacity of the judicial management for better-informed
decision making, based on reliable data collection on the functioning of the
judicial system, research and long term planning.  Other Member States have
also used practices, such as court users’ surveys and staff surveys, to collect
information about weaknesses in their judicial systems.
It has further been
suggested by experts consulted by the Commission that the implementation of
reforms of the judicial system could be piloted or tested in a few courts
before being applied nationwide, as this may enable a better analysis of the
impact on the functioning of the courts and the work of the magistrates. This
method has already been applied for introducing case-management, as part of the
project directed by the East-West Management Institute[35]. In
any event, experience points to the importance of a consistent and sustained
implementation for the successful implementation of a wide-ranging and detailed
strategy. 

1.4.2.          
Management of workload and efficiency of justice

Excessive workload is reported
as a major issue for judges and prosecutors at all levels of courts, and in
various jurisdictions. The problem is particularly acute in Bucharest. In some
cases, the problems of delays are reported to have been exacerbated by the
changeover to the new Civil Code and new Civil Procedure Code, in particular
for professional litigation as the Civil Code assimilated the old Commercial
Code.  High workload also leaves little time for judges, prosecutors and court
clerks to study the new codes and keep ahead with the development of jurisprudence,
thereby increasing the risks of inconsistent decisions and practice. 
The sources of the
excessive workload are multiple. One problem cited by all interlocutors is the
shortage and insufficient training of court clerks, and insufficient expertise
in prosecution. There are also material resources shortages, regarding rooms,
scanners, and computers. There are also structural organisational problems in
case management and effective performance monitoring, as highlighted by the
East-West Management Institute study.[36] 

Another
important source of the heavy caseload is the high number of similar or
repetitive cases by individuals or companies against the State. In other Member
States, one accepted practice is to group such similar cases, choose a few test
cases on which a decision would be taken and then apply the decision to all
similar cases.  In Romania, judges reported that there exists no legal
procedure to group the cases[37].
It also appears that public authorities require separate judgements to fulfil
requirements such as audit clearance for payment. 
Solutions
to diminish the number of cases treated by the courts such as mediation have
been introduced recently. Where mediation is allowed, a judge can invite
parties to participate in an information session explaining the procedure, and
can recommend to parties at any stage that this might be an amicable way to
settle a dispute. However in practice mediation is only rarely used. First
there seems to be problems with the status and quality of mediators and second
it appears that mediation can be more expensive than going to court. 
Other
initiatives have taken cases out of the judicial system altogether. The new
code allows for divorce cases or certain family matters to be dealt with by
notaries. And solutions have been pursued to shift away certain cases from the
courts to the administration.[38]
Finally, the work to develop the role of court clerks and to fill vacancies would
allow some tasks to be delegated by judges to clerks.[39]
The Ministry
of Justice, the SCM and the General Prosecution have also looked at the
long-standing issue[40]
of rebalancing the available resources by redesigning the judicial map. The
analysis proposed closing 30 courts and corresponding prosecutor’s offices and
redesigning the circumscription of 25 other courts and prosecution offices. This
change would however require legislative amendment, and despite the backing of
the Ministry, it seems that the support of Parliament remains uncertain. 
Specialisation can also
help to address particular blockages in the system. In Bucharest, a Commercial
Tribunal will be set up. The law was adopted by the Parliament late in 2013,
and the Tribunal is expected to start functioning in March 2014. It will deal
with all professional litigation. The aim is to support the business
environment in Romania, as a large majority of commercial litigations are dealt
with in Bucharest. It will be a specialised court on commercial matters,
including insolvency, aimed at ensuring better quality and speed. It might
inspire other suggestions, such as a court specialised in litigation with the
administration, including public procurement.
The SCM monitors the
activity of the courts and prosecutors' offices by approving their activity
reports and through the Judicial Inspection. In the last year, the judicial
inspection focused a number of actions on the monitoring of timeliness of
certain type of proceedings, monitoring old cases still pending in courts,
monitoring timeliness in drafting court decisions and verifying managerial
measures in this regard.

1.4.3.          
Management of Resources 

Material
and financial resources
There
is a commitment from the government to provide additional resources to the
judicial system in order to ease the implementation of the reforms. The MoJ
annual budget in 2013 increased with regard to 2012,[41] with
additional amounts allocated for the implementation of the new Civil Procedure
Code. The funds have helped to improve services, processing of acts, renting of
premises and IT equipment. Further court buildings in Tulcea and Pitesti were
built/restored and all Romanian courts were equipped with audio court recording
systems, also with the help of the World Bank.
The
Judicial Inspection should soon be relocated in more appropriate premises. The
HCCJ will have new headquarters in the Parliament Palace from 2014, allowing to
free space for the council rooms for the Judges involved in the new rights and
liberties procedure. 
The National
Institute of the Magistracy (NIM) will also benefit from external funds in the
period 2014-2016. Appropriate funding of NIM will be necessary for the years to
come as the training on the new laws and codes need to continue, as well as the
quality and quantity of initial and continuous training, allowing for more
specialisation. Lawyers and businesses report that still many judges are not
sufficiently qualified to deal with complex (commercial) cases. 
At a
time of severe constraints on public finances, it remains however difficult to
fund the judicial system, in particular in terms of modernisation of the IT
systems of all institutions at all levels, and their adaptations to the new
codes. Examples like a reliable national system for the collection of data on
the functioning of the courts and prosecution services, and a public system for
access to jurisprudence would also require additional resources. The Strategy
for Justice 2014-2018 will bring together these requirements for additional
resources, though some projects will be eligible for EU structural funds. 
The
government also steered a reform of the system of court fees to raise fees for
the first time in several years and to increase the share directed at the court
system, rather than local authorities.[42]

Human
resources: Entry into profession, Promotions and Appointments, HCCJ
competitions 
In
line with the Government memorandum of 2012, new posts of judges/prosecutors
and auxiliary personnel will be allocated in 2013, 2014 and 2015. The SCM and
the NIM organised several competitions to fill the new positions and for
promotions to higher courts. The SCM reports that by the end of August 2013,
all positions corresponding to 2013 were already allocated. 
The
new posts were filled by graduates from the National Institute for the Magistracy
(NIM), but also by direct admission in magistracy for persons with at least 5
years of specialised experience in law. The NIM reports that there were many
candidates for the competitions, and therefore a high quality of the candidates
could be ensured.
A number
of judges and prosecutors also obtained “on-the-spot” promotion (obtaining only
a higher professional degree without being promoted to another court). Experts consulted
by the Commission expressed concern that this solution takes away the
opportunity of mobility for magistrates. 
Subsequent
analyses will be carried out on the need of personnel based on ex-post impact
of the introduction of the new codes and the absorption capacity of the
judicial system.
A new
law was agreed in Parliament concerning the selection of judges at the HCCJ to
address the problems which had held up new appointments. This aimed at the
right balance between the need for rigour in the appointments and the need to
address shortages in the HCCJ, and will also allow the current size of the
panels at the HCCJ to be maintained.[43]


1.4.4.          
Transparency, accountability and integrity of
the judiciary

The
SCM is working closely with the Judicial Inspection on issues of integrity
within the judiciary. The SCM examines files brought forward by the Inspection and
imposes warnings and sanctions. This is a continuous process. During 2013, the
Judicial Inspection carried out 73 disciplinary investigations against
magistrates, and 25 disciplinary actions (18 for judges and 7 for prosecutors) have
been initiated. In the same period, the SCM has rendered 25 decisions on
disciplinary matters (18 against judges and 7 against prosecutors), with 9
cases admitted and 16 cases rejected. [44]
Sanctions ranged from a warning, diminishing of revenue for a given period, the
suspension from office for 6 months, or disciplinary transfers, to exclusion from
the magistracy. Sanctions can be appealed before the HCCJ and the majority of these
cases are still pending. Statistics suggest that decisions are confirmed by
court but for half of the cases sanctions are reduced.[45],[46] In
addition to this, the SCM has decided to suspend from office 9 judges and 12 prosecutors
as a result of the initiation of criminal action against them  for corruption
or fraud. The Plenum also rejected the request of retirement of a prosecutor
and engaged a procedure for dismissal following his final criminal conviction.
During the same period, the sections of the SCM also endorsed the custodial
detention, preventive arrest and search of a judge and for a prosecutor.
The
SCM cites the integrity of the judiciary as a priority.   Both the SCM and the
Judicial Inspection hope that the sanctioning will act as a deterrent for other
judges and will thereby have some positive effect on the integrity and
accountability of the judiciary.
In
August 2013, the Government proposed legislation to Parliament which would amend
the law on the status of judges and prosecutors relating to the possibility to
lose the right to the service pension in case of definitive conviction.[47]

1.5.                
Appointments in the Judicial System

Appointments in the
judicial system are one of the clearest ways for judicial and prosecutorial independence
to be demonstrated. The CVM process has underlined the importance of clear,
objective and considered procedures to govern such appointments;[48] non-politically
motivated appointments of people with a high level of professionalism and
integrity are central to public trust in the judicial system. 
Since July 2012,
several high-level appointments have taken place. The nomination of the HCCJ
President and the vice-president for the civil sections in September 2013 was a
transparent process in line with the established rules. The timetable had been
accelerated in order to avoid interim nomination. Although there was no
competition, with only one applicant for the post of President, this can be
attributed to the fact that the incumbent President had applied and was seen as
a highly-respected figure. Later in autumn 2013, following a similar procedure,
a new vice-president for the Criminal section was appointed.
The nomination of the
General Prosecutor and of the leadership of the National Anti-Corruption
Directorate (DNA) and the Directorate for Investigating Organised Crime and
Terrorism (DIICOT) was a protracted process. It was launched in September 2012
with a short deadline and signals that it was not a fully open process, notably
through public statements by political figures on potential candidates. The
Commission joined others in making clear that it did not consider the procedure
used at that time to be in line with CVM recommendations which had specifically
underlined the importance of this procedure.[49]

The procedure was
subject to changes which gave more time and which opened up the process to more
scrutiny, but it proved difficult to re-establish its credibility. The SCM was
unable to recommend the candidates after a public hearing and no appointments
were made. The institutions therefore continued to function with ad interim
leadership.
In April 2013, a new list
of the appointees was announced and forwarded to the SCM. This included some
figures with established track records in the field of anti-corruption, but was
essentially a political choice, rather than the result of a procedure designed
to allow scrutiny of the candidates' qualities and a real competition. It led
to concerns expressed by a number of voices both within the magistracy and in
civil society. The Commission reiterated its position on the procedure, noting
that the approach taken put the onus of those appointed to show their
commitment to pursue the work of these institutions in tackling corruption.   
Another difficult issue
arose with the appointments of head and deputy heads of section in the DNA in October
2013. Again, delegations to ad interim positions were abruptly terminated, and
nominations were made by the Minister of Justice which had not fully followed
the procedure of consulting the head of DNA. The timing also created concerns
that a link was being made with DNA decisions on cases relating to political
figures.[50]
Following criticism in public debate and by the SCM, a second, more consensual
process took place which resulted in a different set of permanent appointments.

As for more junior
ranks of the magistracy, the appointment of judges and prosecutors takes place
via open competitions, with transparent rules and processes. In 2013, several
competitions for judges, prosecutors and auxiliary personnel were organised by
the SCM to fill in existing and new vacancies. The main criticism that was
reported was that competition exams, for promotion to higher courts and direct
entry, can be too theoretical.

1.6.                
Superior Council of the Magistracy and the
Judicial Inspection
1.6.1.          
SCM – representational role

The
Superior Council of the Magistracy (SCM) plays a central role in the Romanian
judicial landscape. It brings together both judges and prosecutors, though its
work in 2013 has been marked by disagreements between the two chapters. For the
first time, a prosecutor was chosen as President of the SCM, which led to
attempts to rescind the mandate of two judges from the SCM. This was eventually
rejected by the Constitutional Court, but it made it more difficult for the SCM
to act as the voice of the magistracy as a whole.  
This
is particularly important because the SCM is by law the main defender of the
independence of justice, both defending individual magistrates (see above) and
challenging in the Constitutional Court cases where judicial decisions are not
respected. In late 2012 and in October 2013, the SCM notified the Constitutional
Court of legal disputes between the legislative and judiciary powers, with refusal
of the Senate to enforce final decisions of the HCCJ on the incompatibility of
a Member of Parliament. 
The
SCM also represents the position of the judiciary with regard to reform processes
that affect the justice system. It will examine new draft laws and it regularly
issues positions on on-going reforms. It has contributed to the finalisation of
the Criminal Code and Code of Criminal Procedures and to the drafting of the
Strategy for Justice. On 10 December 2013, the SCM issued an Institutional
position on the amendments of the Criminal Code adopted by the Parliament the
same day and on the draft bill for amnesty and pardon of certain crimes.[51]
The
SCM is also the central interface for the justice system towards Romanian
citizens and users of the justice system. It would be in line with the judicial
strategy to see the SCM taking a more proactive role in increasing trust in the
justice system. From the information received, it is unclear whether the SCM
receives many complaints and how these are dealt with. There is no established
practice of conducting regular user surveys.[52]


1.6.2.          
SCM – managerial role

The SCM is the central management entity
for ensuring the independence, the quality and the efficiency of the judicial
process, defining reforms and setting up processes and guidelines for their
implementation, for allocating human and financial resources[53], for
nominations, training and disciplinary procedures. The SCM supervises the NIM
and Judicial Inspection, though these bodies have their own authority and
responsibilities.
The
SCM's current top priorities relate to the implementation of the new codes, the
reform of the judicial map and the definition of the new 2014-2018 strategy. An
inter-institutional working group for the implementing the provisions of the
new codes, chaired by the SCM, is monitoring implementation and proposing
measures such as supplementing staff, updating information systems,
re-publishing codes, and preparing for implementation of the provisions on a
more favourable law. In the first phases of the implementation of the new Code
of Civil Procedures, the SCM has been criticised by some judges for not having
been sufficiently pro-active in addressing the problems and using its
management authority to find appropriate and unified solutions nationwide,
leaving to court leadership or individual judges responsibility for managing the
problems faced with the new codes. By end of 2013, the SCM and other judicial
management institutions were showing signs of a more proactive approach, inquiring
into problems, existing and anticipated, and starting to take corrective
measures.
The SCM also initiates disciplinary
proceedings against magistrates, with penalties ranging from warnings through
reductions in salary to suspension.[54] The
SCM has a policy of   suspending magistrates from office when criminal
proceedings against magistrates have been started and it has enforced this
policy effectively for the last couple of years. [55]

1.6.3.          
Judicial Inspection 

The
Judicial Inspection plays an essential role in the transformation of the
Romanian Judiciary. It contributes at ensuring the integrity of judges and
prosecutors and the quality and consistency of the judicial work and decisions.
Its resources are limited, which has also constrained the opportunities to
replicate successful experiments like a twinning with the Spanish authorities
in 2009-10.
The
main task of the judicial inspection is still disciplinary investigation. In
2013, investigations were pursued against judges and prosecutors regarding
misconduct or negligence, including ex-officio investigations. The Inspection
believes that it has proven professionalism in its work, balance and
proportionality in its responses and sanctions, within the limits of the
resources at its disposal. The sanctions proposed by the inspectorate are
examined by the SCM and further confirmed after voting. Sanctions can be
appealed before the HCCJ. 
The Judicial
Inspection is also called upon to examine cases of attacks against the
judiciary. The Inspection verifies allegations, and if founded, transmits the
file to the SCM. 
In
2013, the Judicial Inspection increased its thematic controls. In addition to
action to support consistency of practice and jurisprudence (see above),
objectives include detecting management weaknesses and structural failings. 
Examples of recent thematic controls are: systems for random allocation of
cases; systematic monitoring of cases for public procurement, corruption and
fraud; delegated judges to penitentiaries; listening devices of prosecutors. The
result is recommendations for improvements and guidelines for consistent practice,
which are then adopted and promulgated by the Superior Council of Magistracy. Following
one of the thematic controls, the SCM decided to amend the internal regulation
of Courts in order to improve the system of random distribution of cases[56]. The
Inspection would like to increase this prevention and consistency role.

2.                      
Integrity framework and the National Integrity
Agency

During the
reporting period, the National Integrity Agency (ANI) has not faced further
constitutional challenges, which had proved to be the biggest risk for ANI in
the past. However, ANI remains subject to pressure. This can be connected to the
substantial number of cases initiated by ANI in terms of conflicts of interest
and incompatibility issues. This has led to public criticism of ANI's
decisions, even when upheld in the courts, and attempts to dilute the integrity
framework through legislative amendment.[57] 

2.1.                
ANI and the National Integrity Council
2.1.1.          
Institutional capacity

ANI has seen an
increase in the number of integrity inspectors and support staff, as well as
new conditions which mean ANI inspectors are comparable with prosecutors. 37
integrity inspectors are working for ANI and deal with around 150 cases per year
each. The average duration of the procedure is of 1 to 3 months for
incompatibilities and conflict of interest and about a year for wealth
assessment.
In 2012 ANI’s
budget was significantly increased and ANI has also received extra funding for
specific projects.[58]
A protocol has
been signed with the General Prosecutor and the working relations with prosecutorial
bodies have improved. These institutions now channel to ANI possible conflicts
of interest. An interesting development is that the General Prosecution has
agreed to discuss with ANI cases which local prosecutors decided not to pursue,
even though ANI cannot formally appeal negative decisions of a prosecutor
(confirmed by HCCJ decision). This "extra judicial" solution is a
sign of the willingness of the two institutions to cooperate.
80% of ANI's
activities are based on external notifications, compared to 20% ex-officio, a
reversal of the previous trend. This reflects the fact that ANI now has over a
dozen protocols of cooperation with judicial and administrative authorities.
However, in general the number of notifications from different government
bodies varies substantially, with some yet to bring any notifications.
The process of
passing through the Wealth Investigation Commissions is showing signs that all
parties have now become more accustomed to the procedure.[59]
A decision of the HCCJ is still pending on whether decisions by the Commission not
to pass a case to court can be appealed by ANI.

2.1.2.          
National Integrity Council (NIC)

The
2012 CVM report concluded that “The NIC has 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.”
In
2013, in the face of sometimes strong media and political attacks against ANI (as
well as the NIC itself), the Council continued to support ANI and its work,
defending ANI in the face of criticism and intervening proactively in
Parliament. This has in particular concerned cases where Parliament has
appeared to challenge court rulings on ANI decisions.[60]  It
also made the case for an increased ANI budget.  

2.1.3.          
Track record – conflict of interest, unjustified
wealth, incompatibility

In 2013, ANI's
track record is as follows:
-         
16
cases regarding unjustified wealth;
-         
80
cases of administrative conflicts of interests;
-         
45
cases of criminal conflicts of interests;
-         
324
cases of incompatibility.
This shows a
substantial increase in ANI's activity compared to previous years.[61]
About half of
ANI reports on incompatibility and conflicts of interest are challenged in
court, but more than 80% of court decisions confirm the ANI reports.[62]
Overall more than 90% of ANI reports on incompatibility and administrative
conflicts of interest are confirmed. 
The court
proceedings on incompatibility cases can be lengthy. ANI reports that it takes
about two years to have a decision on a case on incompatibility in the HCCJ.
Furthermore, although improving, the jurisprudence is still uneven, with inconsistent
decisions at the level of the Courts of Appeal but also at the level of the
HCCJ itself.[63]
There are also difficulties with the actual implementation of a final decision.
Though a final decision on incompatibility would result in the termination of
office or position leading to the incompatibility, it still requires a court
order to implement the decision, and there have been cases where courts have cancelled
the orders of implementation of the final decision. One such case is pending in
a Court of Appeal. The implementation of final decisions on incompatibility by
Parliament is also a problem (see below). Another outstanding issue is that by
the time the sanction is effectively applied, the damage to the public
financial interests can rarely be recovered.[64]

Regarding cases
of unjustified wealth, since 2010 ANI notified 47 cases to the Wealth Investigation
Commissions (WIC) (15 in 2013).  The WICs dismissed 15 of ANI’s referrals,[65] 18 cases
were brought to court, with so far 5 final decisions (4 confirming the report
of ANI).  The time to reach final decisions is long. The average timeframe of
pending cases before the WIC is about three to six months, while ANI’s cases
referred to court by the WIC take about two to three years to be resolved. 
Throughout the
period 2008-2013, 138 cases were referred to the Prosecution for possible
criminal conflicts of interests. More than half of the cases concern public
elected officials. The effective criminal investigation of the files remains
low:  7% of files have been sent to court and for an additional 7% the criminal
pursuit has been started; for 36% no criminal pursuit is started whereas 50% of
files are pending before the Prosecution. Statistics are improving in 2013,
with 18.5% of cases sent to court and another 10% for which criminal pursuit
has been started. None of the cases sent to court has reached a final decision.
In addition to
cases handling, ANI has been developing its prevention activities, targeted at
both individuals and legal persons, in order to clarify formalities to complete
and submit assets and interests disclosures and the legal regime of
incompatibilities and conflicts of interests.
ANI’s strategy
for fighting and preventing unjustified wealth, conflicts of interest and
incompatibility has also been updated and was republished in September 2013.[66]

2.1.4.          
New responsibilities for ex ante checks

ANI and the
National Authority for Regulating and Monitoring Public Procurement signed in
February 2013 a Memorandum of Understanding. This opened the door to a new role
for ANI in the ex-ante verification of conflict of interest in the awarding
process of public procurement contracts. This will require amending ANI's legal
framework and implementing an integrated informatics system to prevent and
detect possible conflict of interests. The intention is that using a standard
format, all procurement authorities will notify the individuals concerned in
procurement decisions to ANI, which will cross check the information with data
on interests. The contracting authority would then be notified in advance of a
possible problem, and ultimately (in case remedial action was not taken) a case
could be notified to the prosecution for investigation. In the first instance,
this procedure will be limited to contracts relating to public procurement
supported by EU funds.[67]

This project is
designed to help avoid conflicts of interest taking place in the first place, and
would thereby reduce the risk of corruption and subsequent loss of funds, also
considering that recovery procedures are cumbersome, lengthy and inefficient.[68]
It would be important to respect the right to protection of personal data. It
would subsequently be extended to all procurement decisions. Further
refinements in the future could for example extend to the issue of "revolving
doors" between contracting authorities and private consultancies.[69]  

Technical
specifications for the acquisition of this informatics system
"PREVENT" have been finalised. The public procurement procedure was
due to start by the time of drafting of this report, with the implementation in
the first half of 2014.

2.1.5.          
Legal Framework

ANI has recently
been discussing with the Ministry of Justice a series of legislative changes.
Such changes could include:
-         
Provisions
for contracts to be declared null and void as soon as a decision on a conflict
of interest becomes final. Currently, as noted above, the legal framework
provides for an automaticity of personal sanctions in cases of incompatibility
or conflicts of interest (removal of office, ban on running elections…), but
the contracts signed in incompatibility or conflict of interest have to be
cancelled through a separate court proceeding. If the contract is cancelled, it
would still be for the administration that has incurred the loss to recuperate
the money, but the awarder (signing in incompatibility) would bear financial
responsibility. 
-         
Certain
controls for the appointment of officials in cases where there would be a final
integrity decision;
-         
Facilitated
access to declarations;
-         
Codification
of the existing legal framework, under ANI's full initiative.
Since summer
2013, there have been steps taken in Parliament to amend the rules on
incompatibilities. The first amendments focused on local authorities. The proposal
was to enable local authority officers, usually mayors, to hold positions in
private bodies such as utility companies which enter into contracts with the
local authority. This is currently deemed incompatible by law. The origin of
this proposal dates back to a controversy which emerged in July 2013, after ANI
found out that several mayors where sitting in the board of (private) public
utilities companies. Whilst such a dual role was forbidden by the law on
incompatibilities,[70]
the presence of mayors in such companies had been recommended by a 2008
Government Decision.[71]
The number of cases was first reported in public declarations to be in the
hundreds, with consequences for a large number of mayors, but in the event the
numbers involved seem smaller, perhaps 70 cases. The Ministry of Justice did
not support the initiative to take these cases out of the definition of
conflict of interest and it did not secure a majority in Parliament. 
A second
initiative which would dilute the effectiveness of the integrity framework was
part of the amendments to the Criminal Code adopted by Parliament in December
2013, declared unconstitutional by the Constitutional Court in January 2014.
These amendments would have modified the definition of conflict of interest,
excluding from conflict of interest appointed and elected officials, including
parliamentarians and mayors, as well as civil servants. According to the
amendments, the scope of the criminal offence of conflict of interests would be
limited to the contractual staff of public authorities. Also administrative
acts would be exempted from the scope of this provision, which means that conflict
of interest relating to decisions of the public administration would have to be
addressed without the tool of criminal law, with substantial consequences for the
integrity framework in Romania. 

2.2.                
The integrity framework: Parliamentary Statute

Two important
issues have been raised in previous CVM reports concerning the approach of
Parliament to integrity issues. The first has been the procedures for the
lifting of parliamentary immunity with respect to search, arrest and detention.
The second has been the automaticity with which Parliament implements final
court judgments, notably those which have upheld decisions of the National
Integrity Agency.[72]
In this respect, principles of clarity and automaticity have been regarded to
be core elements which help to avoid subjectivity in parliamentary actions.
One example in
autumn 2012 was the case of a Senator, where the Plenary of the Senate rejected
ANI's request to end the mandate of Senator, despite a definitive decision in
this respect from the High Court[73].
 This question was taken to the Constitutional Court (CCR) by the SCM, as a legal
conflict between the High Court and the Senate. The CCR decided, with unanimity,
that a legal conflict of constitutional nature indeed existed between the two
institutions, triggered by the Senate's refusal to acknowledge the termination
of the senatorial mandate in line with the definitive High Court sentence.[74]
The Senate took note of the CCR decision. The Senator announced his resignation
from the Senate. A more recent case is still pending decision in the Senate,
following a ruling by the CCR in November 2013 (see below).

2.2.1.          
New Parliamentary Statute

The Law on the
Statute of Deputies and Senators has been subject to important revisions in the
course of 2013.[75]

Parliament considered
in January 2013 amendments to the statute of the Members of Parliament,
changing the procedure for lifting immunities in the cases of the search,
arrest or detention of parliamentarians and the prosecution of former
Ministers. Proposals of modifications to the Law on the Statute of Deputies and
Senators' included: requests for withdrawal of immunity (which must contain a legal
basis and concrete reasons), justification of absences, termination of mandate
(if there is a definitive incompatibility decision), personnel of parliamentary
offices (no relatives), and issues such as political party migration. The
proposal was sent for consultations to other political and judicial institutions,
including the Presidency.
After being
passed through committees and plenary sessions, a first text was adopted by the
two Parliament chambers in February 2013. This was subject to challenge in the
Constitutional Court, which found several provisions to be unconstitutional.[76]
After two CCR decisions and consecutive re-examination and adoption by the two
Chambers in March and April, the Statute was subject to a further challenge
before the CCR.
A revised and
final version of the Statute was adopted in July 2013.[77]
It includes the following relevant provisions:
•        
The
termination of mandate in case of incompatibility, to come into effect either
on decision by the competent chamber, or on a definitive Court decision
(article 7);
•        
Incompatibilities are recognised in the law
(article 16);
•        
Regarding incompatibilities and conflicts of
interest, a procedure for consultation and collaboration with ANI is foreseen
in the Statute - ANI should be consulted before issuing an opinion, with a 5
day deadline to respond (article 17);
•        
Article 24 sets deadlines[78]
for processing requests for detention, arrest or search of parliamentarians.
The
previous CVM report had also recommended that full justification should be
given if Parliament does not let normal law enforcement take its course; no
provisions on the requirement to motivate the decisions against lifting
immunities were included in the new law.[79]

The Law on the
Statute of Deputies and Senators will be complemented by implementing
regulations and by a Code of conduct for MPs. 
At the time of writing, the implementing
regulations were yet to be adopted, so that the changes brought by the Statute are
not yet clear. The most clear cut improvement may well be the new deadlines
set. 
The Code of
Conduct[80]
is currently discussed in a special committee in the Chamber of Deputies.[81]
The Code will be adopted as annex to Law no.96/2006 containing the Statute of
the Deputies and Senators and will bear the same legal effect. The President of
the Chamber of Deputies has acknowledged the desirability of consultation with
the National Integrity Agency, as well as looking at the practice in the
European Parliament.[82] 
The Code includes
a number of general principles concerning the conduct of parliamentarians, such
as respecting the national interest and enhancing citizens' faith in the
legislative process. It also includes provisions requiring the submission of
declarations of wealth and interests. The Code of Conduct does not include a
requirement for Parliamentarians to respect the independence of justice and
refrain from discrediting judicial decision and undermining or putting pressure
on magistrates.[83]
In addition, concern has been expressed that the definition of incompatibilities
and conflicts of interest within the Code, instead of a reference to the
existing laws, could give rise to confusion with regard to the existing laws
that apply to Deputies and Senators. 
Collectively,
these changes will need to be assessed in relation to their impact on concrete
cases, and the number of cases would be likely to be affected by amendments
such as those proposed for the Criminal Codes in December 2013.

2.2.2.          
Recent cases  

The desirability
of more clarity in the procedures has been underlined by the reaction of
Parliament to Court cases confirming ANI rulings in a number of key cases. 
As mentioned
above, ANI has a strong record in seeing its incompatibility cases confirmed in
court. Several of these have involved parliamentarians, and others are now
before the Courts.[84]
In addition, administrative decisions declaring conflicts of interest,
including one deputy, remained definitive. A number of ANI investigations have
also led to prosecutions of parliamentarians. 
An important
recent case concerns an HCCJ decision as regards revocation from function of a
Senator, found in incompatibility by ANI. The Senate took no action.[85]
Following an appeal by the Supreme Council of Magistrates, the Constitutional
Court (CCR) ruled that the Senate was by law competent and should take a
decision on the termination of the Senator's mandate. It is also to be noted
that there are more cases of potential incompatibilities in the pipeline, so
this case will be a test case for the Senate. 
In December
2013, ANI highlighted another case of final incompatibility decision by the
HCCJ for a Deputy on which the Chamber of Deputies should take a decision. 

3.                      
Tackling high-level corruption

Corruption
remains a major issue in Romania (see below). High-level corruption plays a
particular role both in its own terms, and in terms of perceptions about the
determination of the Romanian authorities to tackle the issue. Previous CVM
reports have noted that the track record of key anti-corruption institutions
had had a positive impact on the consolidation of Romania's anti-corruption
effort.[86]

3.1.                
Track Record in High level cases – High Court of
Cassation and Justice

The High Court's
track record on tackling high-level corruption cases has been maintained
throughout 2013. The leadership of the HCCJ has underlined the importance of
the rule of law being seen to apply even in the most sensitive cases, so the straightforward
renewal of the High Court's leadership in September 2013 reinforced its ability
to continue this approach. The organisation of the nomination procedure by the
Ministry of Justice meant that gaps/interim in the leadership could be avoided.
This was clearly consistent with the January 2013 CVM Report recommendation
that it is essential that this advance in the fight against high level
corruption is maintained under new leadership.
The High Court has
reported a scale of cases for 2013 which are in a comparable order of magnitude
as the 2012 figures. The Penal Chamber settled, at first instance, 10
high-level corruption cases and the Panels of 5 judges settled, as final
instance, 15 high-level corruption cases. Defendants included among others a
former deputy, a former senator, former ministers, a former prosecutor and a
former judge.  The start of 2014 also saw further cases concluded, including
that of a former prime minister.
The High Court
has continued to implement organisational measures to prevent delays in
high-level corruption trials.[87]
Importantly, the High Court has also continued to propose solutions to
procedural loopholes allowing for procrastination, which had previously been a
feature of high level corruption cases. For example, on the basis of the
proposal of the High Court, Article 48(1) of the new Code of criminal procedure
was amended, providing that the court of first instance maintains its
competence ratione personae, even when the defendant no longer has a
status requiring High Court consideration, once the indictment has been read
before the court (the initial stage of the trial in first instance). The High
Court is also closely monitoring cases that might reach prescription earlier
following the new Criminal Code. 
Maintaining
five-member panels for final instance, which was in question earlier in the
year, has not had any discernible impact on the progress of cases.[88]
Since the end of 2011,
the SCM also monitors the timeliness of high-level corruption cases, with a
report of the Judicial Inspection twice a year. 

3.2.                
The National Anti-Corruption Directorate (DNA)
3.2.1.          
Legal Framework 

The
responsibilities of DNA were reframed and the investigation of cases regarding
the offences of tax evasion, fraud and customs offences causing a prejudice of under
€1 million were removed from DNA's jurisdiction. This should allow DNA to focus
even more on high and medium level corruption cases.[89]
Another
important change for the anti-corruption institutions, DNA included, will be
the entry into force of the New Criminal Code and of the New Criminal Procedure
Code on 1st February 2014. It should accelerate the resolution of
cases and provide procedural improvements (for example on the use of special
investigative means). The DNA leadership and staff are actively preparing for
the entry into force of the codes and is analysing the provisions in detail.[90]

The DNA is also
currently conducting an analysis regarding the high-level corruption cases for
which there is a risk of expiry of the prescription period after the entry into
force of the new Criminal Code scheduled for February 2014.[91]

On 10 December 2013,
the Romanian Parliament voted a series of amendments to the Criminal Code with
direct consequences on the fight against corruption, both high-level and petty
corruption.[92]
This included the removal of the President of Romania,
the Members of the Parliament and persons carrying out a liberal profession (such
as lawyers, notaries, bailiffs) from the definition of the “public official” in
the Criminal Code. This would appear to have the consequence that they would have
no longer been covered by criminal offences which are defined as committed by
“public officials” like, for instance, bribe taking, abuse of office and
trading in influence. CVM reports have consistently underlined the importance
of ensuring the full coverage of anti-corruption measures.[93] The
judicial authorities in Romania also noted that the UN
Convention on Corruption defines public officials to be covered by corruption
rules as any person holding a legislative, executive, administrative or
judicial office of a State Party, whether appointed or elected.[94]
Another provision was a
modified prescription regime which would have substantially reduced the
prescription period. CVM reports have frequently commented on the prescription regime
in Romania,[95]
which includes a relatively unusual provision that prescription ends only with
a final instance judgment. Other important provisions included redefining conflict
of interest in order to remove a wide range of categories of persons from
liability for a criminal offence (see above). 
On 15 January 2014,  following
three challenges to the CCR (one from judges at the HCCJ and two from the PDL
party), the Constitutional Court declared the amendments to be unconstitutional
on the grounds that they violated the constitutional provisions on the respect
for the rule of law and the Constitution, on the principle of equality, on the
respect of obligations stemming from international treaties, on the obligation
to observe the Constitution and laws regarding the clarity and predictability
of rules and on access to justice.[96]  
 At the time of writing the report, the Parliament has not expressed its further
intentions.

3.2.2.          
Institutional capacity

DNA considers
that it would benefit from setting up a specialised structure within its
organisation to conduct financial investigations. This would help to increase
the extent of asset recovery originating from corruption offences and to effectively
enforce the new provisions on extended confiscation. DNA faces a very high
workload for prosecutors dealing with economic crimes (about 120 cases per
prosecutor). According to DNA, such a structure would also need its own
investigative capacities, notably to avoid leaks. For this purpose, DNA asked
the Ministry of Justice in September 2013 to complement its staff with 50 posts
of judicial police officers and agents. This request has received a favourable
opinion of the Superior Council of Magistracy. 

3.2.3.          
Track record 

DNA maintained
its track record on conducting investigations of high level corruption cases
throughout 2013, with a significant increase in the number of indicted
defendants and in the number of successful prosecutions. This trend has
continued through a period of uncertainty concerning DNA leadership (see
above). The willingness of DNA prosecutors to defend their institution can be
seen as a positive sign of the organisation's commitment to fulfilling its
mandate. 
According to
DNA, during 2013, DNA registered 270 indictments, indicting 1073 defendants,
including: 1 Deputy, Member of the European Parliament; 5 Deputies, including a
Vice-Prime Minister; 1 Senator, a senior officer within the Ministry of
National Defence; 1 Minister, currently Member of the European Parliament; as
well as numerous senior civil servants, policemen and magistrates. 40 of these
indictments cover cases of fraud against the EU budget.[97]
In order to recover the prejudice or to ensure the confiscation of the proceeds
of crime by the courts, the prosecutors ordered "ensuring measures"[98]
relating to diverse assets amounting for a total of approximately €250 million.
During the same
reference period, 244 final conviction decisions were issued against 1051 defendants
in the cases put forward by the DNA. Many of them were also high profile
defendants, including 1 Senator, 1 Deputy, 2 Ministers as well as numerous
senior civil servants, policemen and magistrates. The vast majority of the
sentences consisted of imprisonment. However, there were a large number of suspended
sentences (see below). This, combined with modest results in terms of recovery
of the State's financial prejudice in corruption cases as well as limited
confiscation[99]
could affect the deterrent effect of DNA's action, despite the very substantial
figures of indictments and final convictions.
DNA also reports
over the same period of reference 34 final acquittal decisions for 79
defendants, though in the case of 6 defendants the courts ruled the application
of an administrative fine. This represents a small reduction in the proportion
of cases ending in acquittal.

3.3.                
Other key institutions

The fight
against corruption is not the primary function of the Directorate for Investigating
Organised Crime and Terrorism (DIICOT), but its work to tackle serious
crimes perpetrated by organised crime groups often includes investigating corruption
as an enabler. This can be the case under the general category of "crimes
against the security of the state", but also for example large-scale
smuggling or trafficking by organised crime groups. DIICOT reported having
handled 32 cases of organised crime linked to corruption, resulting in the
indictment of 25 civil servants.
Cooperation between
DNA and DIICOT is an important feature and possible conflicts of competence are
handled pragmatically, with the institution who first received the complaint
taking the lead, with a possibility for the General Prosecutor to arbitrate if
needed.

3.4.                
Extended confiscation

The Ministry of
Justice reported that the 2012 law on extended confiscation had been used by
the prosecution between 1 January and 1 September 2013 in 34 cases to order
interim measures, with a view to applying the extended confiscation.[100] The
cases concerned for example corruption offences and/or offences assimilated to
corruption, fiscal fraud, smuggling and money laundering. For extended
confiscation, there need to be reasonable motives to believe that the assets
are linked to crime. There has to be at least one open criminal procedure.
The first Court
decision involving extended confiscation (since the introduction of the
relevant provisions in the Criminal Code in April 2012) was given in March 2013
by the Tribunal of Timiş in a corruption case. The case is currently on
appeal at the High Court of Cassation and Justice.
In June 2013,
the High Court ruled, by final decision, the extended confiscation of two
apartments which were purchased by the defendant, a police officer, convicted
for trafficking in influence.
Extended
confiscation still remains a relatively rare procedure and the perception is
that it will take time for prosecutors and judges to become familiar with its
use.[101]
Input from the High Court and communication of HCCJ decisions, support from the
General Prosecutor, and training have all been identified as possible ways to
improve the use of the extended confiscation law.

3.5.                
Money laundering

According to the
National Office on the Prevention of Money Laundering, 70% of money laundering
is related to tax evasion and a portion of the remainder is linked to
corruption. No specific figures related to money laundering cases related to
corruption cases have been provided, but the office has underlined the good
cooperation with DNA.

3.6.                
Court practice
3.6.1.          
Sanctions

An important
issue is the dissuasiveness and the coherence of sanctions. The High Court of
Cassation and Justice has continued to elaborate sentencing guidelines,
targeting passive bribery, passive trading in influence and active trading in
influence. These guidelines were approved by the Penal Chamber of the HCCJ,
were sent for consultation to all courts of appeal and, after this
consultation, were published on the web-site of the HCCJ. [102]
Most DNA cases
end with the conviction of defendants to imprisonment penalties, but a very
large proportion ruled with suspension of execution.[103] From
January-October 2013, 179 final conviction decisions were ruled against 857
defendants in the cases conducted by the DNA. 853 of these defendants were
convicted to imprisonment penalties. Out of the 853 imprisonment penalties: 
-         
22,2% 
(189 penalties) were ruled with execution in detention and
-         
77,8% 
(664 penalties) were ruled with suspension of execution (either - conditioned
suspension of execution, or suspension of execution with surveillance)
The proportion
of suspended sentences was particularly high at the level of the Courts of
Appeal, with 88% (141 penalties) suspended.[104]
It was also high at the HCCJ itself, with 75% (512 penalties) suspended.[105]  

3.6.2.          
Duration of proceedings

DNA has reported
quicker proceedings and mentioned examples of two high level cases against a
minister and against a judge where procedures were finalised from indictment in
4-6 months. Out of the 205 cases in which final decisions were ruled January-October
2013, the majority (about 73%) received a solution in less than 4 years (most
of these within 2 years), whilst about 11% received a solution in less than 5
years. The rest, representing about 15%, had taken 5-10 years to come to a
conclusion.
The long
duration of certain cases is explained by DNA by specific circumstances such as
the need to hear a very large number of defendants and/or of witnesses or
multiple appeals. Past cases allowing successive delays due to an exception of
unconstitutionality or the absence of a defence lawyer have now been largely
excluded. In the former case, the fact that the exception of
unconstitutionality no longer entails a suspension of court proceedings can be
linked to a significant reduction in such cases. In the case of absent defence
lawyers, a team of ex-officio lawyers has been put in place at the High Court
to replace absent defence lawyers at high level trials. 

3.6.3.          
Magistrates' special service pensions

A number of magistrates
have been involved in corruption cases, indicted by DNA and convicted by the
High Court, though sentencing at the HCCJ in this area has been identified as a
possible area requiring more consistency. In the past, a further difficulty was
posed by the fact that magistrates convicted of corruption did not see a
consequent impact on their preferential special pensions. The Ministry of
Justice has proposed a law on the loss of a magistrate's special "service
pension" when subject to a definitive conviction for intentional criminal
offenses, including corruption. The draft law was endorsed by the SCM and has
passed the Chamber of Deputies. At the time of writing, it remains before the
Senate. 

3.7.                
Political approach to high-level corruption
3.7.1.          
Rules on Ministerial resignations

The Romanian
Constitution contains clear provisions on the liability of Members of the
Government.  In particular, its Article 109(2) foresees that "Only the
Chamber of Deputies, the Senate and the President of Romania have the right to
demand the criminal prosecution of members of the Government for acts committed
in the performance of their duties. If criminal prosecution was asked for, the
President of Romania may order their suspension from office. Proceedings
against a member of the Government shall entail his/her suspension from office.
The jurisdiction belongs to the High Court of Cassation and Justice.”
With regard to
members of Parliament, where they are also Ministers, the approval of
Parliament is needed in order to start an investigation. Both DNA and DIICOT have
pointed to uncertainties and delays in this process.

3.7.2.          
Recent practice

The January 2013
CVM Report recommended that Romania should "Ensure swift application of
the Constitutional rules on suspension of Ministers on indictment". 
It appears that cases involving incumbent Ministers have been handled in
different ways and that no clear pattern emerges.
In one case, an
indictment of a Minister by DIICOT has resulted in resignation. However,
procedures engaged for the lifting of the immunity from investigation of the
defendant have been rejected by the Parliament, whilst the prosecution
considered that there was enough evidence to start a case.[106] In
another high-profile case regarding an indictment for electoral fraud, no steps
have been taken at the time of the drafting of the present report. In a third
case, a first instance sentence by the High Court resulted in immediate
resignation.

4.                      
Tackling corruption at all levels

Perception
surveys consistently highlight corruption as a serious problem in Romania.[107],[108]
Successive CVM reports have pointed to the need for determined and sustained
efforts at all levels.[109]


4.1.                
The National Anti-corruption Strategy (NAS)

The National
Anticorruption Strategy 2012-2015 continues to develop. This includes
activities related to monitoring implementation, notably through peer reviews
involving NGOs in the last quarter of 2013.  Based on an assessment of risks,
each institution covered by the NAS must define and enforce disciplinary rules
and internal control standards on integrity, ethics and vulnerable positions. From
the reviews and monitoring it appears that there is no common approach to risk
assessment[110]
 and that there is a range of different rules and standards applied in the
different institutions. Uncooperative institutions are not sanctioned as such, though
there is a blacklist of those who have not published their reports. 
NAS
implementation is monitored by thematic evaluations missions, taking place at
local and central level. The NAS also has a portal,[111]
which offers the possibility to report data on preventive measures indicators
as well as self-assessments of public institutions. The participation of local
authorities to the NAS has also progressed, and out of 3177 administrative units,
2532 have now nominated contact persons for the activities related to the
implementation of NAS.

4.2.                
Examples in tackling corruption
4.2.1.          
Fighting low and medium level corruption

Petty corruption
is recognised as a problem in many areas (with all kinds of "informal
payments" requested).[112]
Tackling this involves a combination of prevention and the effective pursuit of
cases of corruption, where the fight against petty corruption is one of the
stated priorities of the General Prosecutor.  
The Public
Ministry has reported that the number of resolved cases in 2013 increased by
about 9% compared to a similar period of reference in 2012. The number of
indictments went up by about 15% and the number of defendants sent before
courts increased by about 22%. Nevertheless, experts consulted by the
Commission saw the overall numbers as small, notably in comparison to what perception
surveys suggest about the prevalence of corruption.  
The General
Prosecutor has also re-opened decisions not to indict on charges of conflict of
interests and eventually quashed a few of those decisions. In the past, the
lack of attention given by the prosecution to the fight against conflicts of
interests has been highlighted by ANI and others. 
The National
Anti-Corruption Strategy also has a local component in the form of local
"task forces" regrouping all the correspondents from different
administrations, ranging for example from the Coastguards and the Police to
schools and pension offices. There are platforms to share best practices in
terms of risk identification and preventive measures.
Some of the
underlying causes linked by experts to low-level corruption, such as low
salaries, are difficult to tackle. But some of the Romanian authorities working
in this field have identified concrete measures to discourage and dissuade
corrupt practices. Examples include: control of cash before and after shift for
the police and the customs, cameras in patrol cars, schedule people randomly
for the driving licence examination, video monitoring and rotation of city hall
staff receiving cash payments, and a system enabling online tracking of
administrative demands to limit physical contacts between the public and
officials. The use of technology and increased transparency have been
identified as general factors that can assist in tackling corruption. 

4.2.2.          
Public administration[113]

Further steps
were accomplished in order to strengthen the administrative capacity of the
National Agency for Fiscal Administration (ANAF) in the fight against
corruption and tax evasion, notably by setting up the Fiscal Antifraud General
Directorate (FAGD) within ANAF. It will provide specialised technical support
to prosecutors in carrying out criminal investigations, in cases concerning
economic and financial crimes. To this end, the antifraud inspectors within
this department are seconded to prosecution offices.
The general
Directorate for Anti-Corruption within the Ministry of the Interior (GAD)has
established over the last years a positive track record for fighting corruption
within the Ministry. There was a proposal from the government to extend its
competence for preventing and countering corruption to other ministries. But it
was not accepted by the legislator. The GAD also now operates a call centre
which is available to citizen free of charge to report corruption offenses.[114]

4.2.3.          
Projects

Specific
anti-corruption projects, for example in the Ministries of Education, Health,
Justice and Regional Development as well as in ANAF have continued. One
important element has been the training of civil servants, illustrating an
increasing emphasis on prevention in the fight against corruption.  
The following
projects supported by Romanian NGOs and by EU serve as examples:[115]
Ministry of
Education:
For many years fraud had not been considered a priority but the profile has
been raised by scandals in higher education, for example with the fraudulently
obtained medical degrees (a case which resulted in jail sentences). Cases
continue to be identified, both by DNA and by the Ministry of Education, albeit
on a small scale statistically. The use of webcams in exam rooms has been
promoted and a secure transmission system is used for the dispatching of exam
subjects. A strategy on the fight against corruption in education was adopted
in September 2013 and financial support granted. The Ministry is considering
revising the curricula to include corruption issues and has invited magistrates
to talk in schools.
Ministry of
Health:
the need to fight corruption both in terms of "informal payments" and
public procurement is acknowledged and the health sector appears to be one of
the most problematic in Romania. A study on corruption in the health services
has been performed, with the support of EU funds. It has revealed a
"cartelisation" of companies delivering hospital supplies and abusive
payments for infrastructure (overcharging or failing to supply goods as
contracted). "Informal payments" are widespread, with a few
exceptions (emergency services for example). For public procurement, a central
procurement agency for health has been set up, which has already allowed for
substantial savings (stents, consumables, vaccines, ambulances…).

4.2.4.          
Civil society

Civil society in
Romania plays an important role in pushing forward the fight against corruption
and changes in practices, both by documenting and highlighting the problems and
by providing support and expertise to concrete anti-corruption projects. 

4.3.                
Public procurement
4.3.1.          
Institutional and legal changes

Streamlining of
legislation and ensuring more stability emerge as key issues from magistrates
and business operators involved with public procurement in Romania. Several
NGOs, business and independent experts have reported the continuing
vulnerability of public procurement procedures to corruption. Whilst this is
not a problem unique to Romania, there is also a question of administrative
capacity to handle the procedures, in particular at local level, which calls
for particular attention. This also illustrates how procedures to ensure
upstream prevention of corruption are particularly important in public
procurement.
As regards
criminal cases concerning public procurement, other than those falling under
the competence of the DNA, the General Prosecutor reported that 109 cases were
solved during January-October 2013. Five indictments have been issued,
resulting in 23 defendants sent to trial. 8 of them were provisionally
arrested. Throughout the reporting period, the courts delivered 3
non-definitive conviction decisions by which 6 defendants were convicted, and 1
non-definitive acquittal decision.
An important
issue for public procurement will be the strengthening the cooperation between the
National
Authority for Regulation and Control of Public
Procurement (ANRMAP), ANI and
other administrative and judicial authorities in preventing/identifying
conflict of interest. This is particularly important in the context of the
proposed new system for ex ante controls on conflict of interest to be
undertaken by ANI (see above).[116]
The impact of
the “decentralisation law” adopted by the Romanian Government in November 2013
on the fight against corruption at local level is unclear. As such,
decentralisation can bring positive consequences and is not an issue of direct
relevance from a CVM perspective. Nonetheless, according to the ANI 2012 Annual
report,[117]
a substantial number of cases of conflicts of interests and of the cases of
incompatibilities evaluated by ANI occurred in local government. This is in
line with experience in other Member States, and points to the need to
accompany the transfer of responsibilities with dedicated measures to address
the risk of corruption.

4.4.                
Asset recovery

The recovery
rate to ensure that decisions of the courts with financial consequences accrue
to the public purse remains very low –  estimates suggest that the Romanian
Asset Recovery Office (ARO) recovers less than 10% of assets notified by
Courts. 
In criminal
cases, the State can recover the damage or part of it only through the
confiscation of assets found in the course of the criminal procedure. Most of
the financial sanctions imposed by courts are damages, but it seems that the
public authorities responsible for recovering these damages only rarely pursue
the cases.
For public
procurement contracts, in the case of fraud a financial correction will be
imposed by the management authority, deciding that the contractor has to pay
back. The recovery of these sums is an administrative question, and it seems
that the pursuit of these cases and the enforcement of recovery by public
authorities and bailiffs are weak. Procedures in such circumstances would
normally be expected to be automatic, which points to a need for training and
awareness. The Court of Accounts also has a role to play.
In order to
improve the performance in the recovery of assets, priority areas have been
identified by the Romanian authorities: the development of asset management
institutional capacities, the appointment of 280 financial investigators within
prosecution offices, enhancing international cooperation via ARO and the
enforcement of relevant legislation on extended confiscation and early selling
of movable assets. A number of shortcomings regarding the capacity of the
Romanian authorities to confiscate and recover the proceeds of crime were also
identified in a recent study finalised in July 2013.[118] The
study also includes a series of recommendations for improvement. 
There has been a
doubling in the number of requests received by the Romanian ARO in 2013
compared to the same period in 2012 (88 compared to 43). There is also an
overall increase starting from the natural and legal persons under
investigation to the identified assets. There is also a substantial increase
(more than fourfold) in the number of identified vehicles, apartments and bank
accounts. 
[1] Previous
CVM reports can be consulted at: http://ec.europa.eu/dgs/secretariat_general/cvm/index_en.htm
[2] This concept is to be understood as the consistent interpretation
and application of the law and practice within the judiciary, referring to the
civil law tradition. 
[3] Constitution of Romania article 124.
[4] COM(2012) 410 final; COM(2013) 47 final.
[5] For example, on 31 October, the president of the SCM seized the
Constitutional Court on a dispute of constitutional nature regarding the
non-enforcement of a final decision of the High Court of Cassation and Justice
on the incompatibility of a senator. This is the second legal conflict
initiated by the SCM, after the notification of the Constitutional Court in late
2012 on a similar case, where the Court has held that there was a legal dispute
between the Judiciary and the Legislative following the refusal of the Senate
to enforce a similar decision.  
[6] 6 solicitations were registered by the Inspection's Directorate for
Judges and 11 solicitations by the Inspection’s Directorate for prosecutors.
The SCM Plenum has admitted 4 of the 6 solicitations registered by the Judicial
Inspection’s Directorate for Judges (1 solicitation has been rejected and the
one is pending before the Inspection) and 4 of the 11 solicitations registered
by the Judicial Inspection’s Directorate for Prosecutors (3 solicitations have
been rejected and 3 are pending).
[7] For example in France, on the basis of a law from 1958, between
2000 and 2013, there were 74 requests for protection by magistrates for which
the Ministry of Justice paid lawyers costs allowing them  bringing their case
to court.
[8] Art 276 “The act of a person who, during the judicial proceedings,
makes false public statements that a judge or criminal prosecution bodies would
have committed a crime or a serious disciplinary misconduct related to the
investigation of that case, aiming at influencing or intimidating, is punished
with imprisonment from 3 months to 1 year or fine.”  
[9] Law no. 341 of 16 December 2013 modifying Law no. 3/2000 on the
organisation of a referendum, reducing the threshold to 30%.
[10] Amended article 52(3) will make the state liable for loss caused by
judicial error if liability is imposed by law and if, for example, power has
been exercised in bad faith or serious or gross negligence is involved. The
amended section goes on to confer on the state a right of redress against the
magistrate. Such a provision could risk an infringement of judicial
independence: see the United Kingdom submissions in Case C-224/01, Köbler v
Austria.
[11] Amended article 64(4) would give the Parliament power to compel the
attendance of judges before Parliamentary committees, for example, to assist
them in their formulation of legislation. Such a provision could risk opening
the door to political pressure in breach of the independence of the judiciary.
[12] Amended article 113(2) would increase to 4 out of 21 the proportion
of the SCM members appointed by the political branch of the state (Parliament).
[13] COM(2013) 47 final, page 4; Council Conclusions on the CVM, 11
March 2013.
[14] For example, there is a Resolution of the United Kingdom House of
Common of 15 November 2001 restricting Members of Parliament from commenting on
proceedings in court unless a ministerial decision is in question, or in the
opinion of the Speaker a case concerns issues of national importance.  There is
also the convention in the House of Commons that MPs should not criticise
judges in debate or in motions and questions. There is also a debate in the UK
about including specific provisions on this issue in the Ministerial Code, to
preclude comments on the results of particular cases or specific sentences handed
down by a court, while retaining Ministerial freedom to comment on the
effectiveness of the law, or about policies on punishment in general.
[15] In 2013, the NAC adopted 11 sanctioning decisions out of which 7
sanctions with a fine and 4 public summons to broadcasters in cases related to
the justice system and the police. http://www.cna.ro/-Decizii-de-sanc-ionare-.html

[16] Articles XII, XIII,XVIII, XIX,  of Law no.2 of 1st of February 2013.                                                                 
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                
[17] COM(2012) 410 final, p.4.
[18] For example, working with prisons and probation services to
identify serving prisoners whose sentences will expire when the Criminal Code
brings in shorter sentences.
[19] The professional training on the new codes has been carried out
mainly within a project coordinated by the Superior Council of Magistracy, with
external funding under the Swiss Financial Mechanism and implemented with the
National Institute of Magistracy (NIM) which has organised training sessions
(with the participation of over 2300 magistrates out of the total almost 7000)
and several other activities with the same purpose (e.g. conferences recorded and
broadcast online, accessed by over 46.000 unique visitors). 
[20] At the end of 2013, the Swiss – Romanian Project was extended for
12 more months and the number of activities has been extended by adding 14 more
face to face seminars to the 250 already approved seminars.
[21] For example, from the Romanian Bar Association.
[22] In a joint letter, DIICOT and DNA have requested the General
Prosecutor to notify the Ministry of Justice with a view to amending some provisions
of the New Criminal code and the new Criminal Procedure Code. They raised
concerns with regard to the provisions requiring for the interceptions to be
authorised only after the stage when criminal charges are pressed against the
defendant and not in pre-investigation phase or undercover investigation. Other
issues raised include access to financial information, judicial expertise and
the need for some transition provisions.
[23] Draft Emergency ordinance on the implementation of the Criminal
Code and the Code of Criminal Procedures.
[24] For example in France this is done via “Circulaires” issued by the
Ministry of Justice having authority on the Public Ministry.
[25] The President of the fiscal and administrative section of the High
Court reported that rulings are sent to the Courts of Appeal around twice a
month, and each opinion may cover more than one issue.
[26] COM(2012) 410 final, p. 7.
[27] On 19 November, the Plenum of the SCM decided to grant access to
the ECRIS system to all judges and court clerks. The ECRIS system enables each
judge to access all the decisions of the courts and to upload and to publish
decisions online.
[28] An Introduction to Comparative Law,
Professors Zweigert and Kötz (Oxford, 3rd ed, 1998, page 262):
“It is true that there is never any legal rule which compels a judge [in civil
law countries] to follow the decisions of a higher court, but the reality is
different.  In practice a judgment of the Court of Cassation or of the
Bundesgerichtshof in Germany today can count on being followed by lower courts
just as much as a judgment of an Appeal Court in England or in the United
States.  This is true not only when the judgment of the superior court follows
a line of similar decisions; in practice even an isolated decision of the
Bundesgerichtshof in Germany enjoys the greatest respect, and it is very rare
and not at all typical for a judge openly to deviate from such a decision.  In
France the situation is much the same.”
[29] HCCJ rulings in the interest of the law and preliminary rulings are
binding to all courts after publication in the OJ.  Dissenting decisions would constitute
a disciplinary offence.
[30] As reported in the CVM Progress Report of January 2013 COM(2013) 47
final, the Venice Commission of the Council of Europe considered that the
excessive use of government emergency ordinances should be addressed.
[31] In January 2014, the CCR ruled that the decentralisation law is
unconstitutional (on substance).
[32] The Judicial Functional review has not been published yet. It is
currently under translation in Romanian.
[33] “Determining and implementing the optimal volume of work of judges
and court clerks and ensuring the quality of the courts’ activity”, East-West
Management Institute, March 2013.
[34] http://www.coe.int/t/dghl/cooperation/cepej/evaluation/default_en.asp;
The World Bank: New Directions in Justice Reform (2012) (http://documents.worldbank.org/curated/en/2012/05/16706679/world-bank-new-directions-justice-reform-companion-piece-updated-strategy-implementation-plan-strengthening-governance-tackling-corruption).

[35] See footnote 33.
[36] See footnote 33.
[37] As an exceptional measure, following an avalanche of similar cases
on reimbursement of pollution taxes, the Government issued a decision that one
final court decision would apply to all cases.
[38] Such as handling issues related to the first registration of a car
administratively, without the need to go to court

[39] This legislation was voted by the Chamber of Deputies in March 2012
but is still under consideration by the Senate.
[40] COM(2012) 410 final; COM(2013) 47 final.
[41] After the budgetary rectification of October 2013, the 2013 budget
was 13% higher than for 2012.
[42] As of 1 January 2014, the revenues from stamp duties to be
transferred to the state budget will be 45%, compared to 30%, as in the old
regulation, the remaining 55% being allocated to the local authorities.
[43] The CVM report of January 2013, COM (2013) 47, final had underlined
the importance of maintaining quality in promotions to the HCCJ, and considered
that the current size of the panels struck the right balance.
[44] Out of the 25 decisions rendered in 2013, 8 of them had been
registered in 2012: 6 at the Section for Judges and 2 at the Section for
Prosecutors.
[45] 100% of SCM decisions of the Section for Prosecutors since
September 2012 have been appealed. The Court has admitted the appeal for two of
the decisions rendered by the Section for Prosecutors and has reduced the
sanctions in both of these cases (for one of the decisions the sanction was
warning and the court has rejected the disciplinary action; for the other
decision the initial sanction was exclusion from magistracy and the court 
admitting the appeal has rendered the sanction consisting in disciplinary
transfer), representing 25% of the appealed decisions, 50% are still pending
and 25% of the decisions of the SCM have been confirmed. 
[46] 45% of SCM decisions of the Section for Judges since September 2012
have been appealed. The Court has also admitted the appeal for two of the
decisions rendered by the Section for Judges and has reduced the sanctions in
both of these cases (in both of the decisions the initial sanction was
exclusion from magistracy and the court has modified the sanctions into
disciplinary transfer), representing 20% of the appealed decisions, while 40%
are still pending and 40% of the appealed decisions have been confirmed.
[47] See section 3.6.3 below.
[48] COM(2012) 410 final; COM(2013) 47 final.
[49] See COM(2013) 47, p 5.
[50] Specifically the finalisation by the Head of Section at interim of an
 indictment for electoral fraud.
[51] On 15 November 2012, the SCM issued a negative opinion on the
legislative proposal for the amnesty of certain crimes and pardon of certain
penalties.
[52] A consultant has been identified to carry out a survey on actual
experiences, attitudes and perceptions towards the reform process.
[53] In terms of human resources, the SCM took steps to ensure the
implementation of the stages provided in the Memorandum adopted by the
Government in 2012, in order to supplement the schemes of magistrates, but,
more important, of auxiliary personnel in courts and prosecutors’ offices.
Likewise, the SCM has organised the competitions of admission, promotion in
profession and on leadership positions, in order to have the schemes of
personnel adjusted for the needs of the new codes.
[54] The SCM sections applied sanctions that ranged from a warning of a
judge (for having a behaviour that affected the honour, the professional
probity or the prestige of justice), the diminishing with 20% of the revenue
for 6 months (a judge who has repeatedly delayed his works), diminishing with
15% of the revenue for 3 months (a judge breaching the duty to abstain or
repeated delays in elaborating the works from imputable reasons) and the exclusion
from magistracy of three judges and two prosecutors (cases which included
interfering with the activity of other magistrate, affecting the prestige of justice,
and the use of function for private interests).See also section 1.4.4
[55] For example, during August-October, the Sections have decided to
suspend from office two judges and, respectively, a prosecutor accused for
corruption, and on 8 October, the Plenum has rejected the request of retirement
of a prosecutor and notified the President of Romania in order to dismiss him,
following his final criminal conviction. During the same period, the sections
of the SCM also endorsed the custodial detention, preventive arrest and search
of a judge and for four prosecutors. In November, 2 other prosecutors have been
suspended and one prosecutor under criminal investigation for abuse in service
resigned.
[56] In September, the Section for judges has analysed the report of the
Judicial Inspection on the random distribution of cases at the Bucharest
Tribunal and order some administrative measures and procedures in order to
prevent a possible intervention in the software of random distribution of cases
and further improvement of these software.
[57] For
example, 13 MPs from all major political parties introduced early December 2013
a draft law aiming to avoid ANI's analysis by stipulating that all
incompatibilities and conflicts of interest are only the ones specified by the
Statute of MPs.
[58] The core budget is in 2014: 19.444.000 Lei; 2013:
17.942.000 Lei; 2012: 20.610.000 Lei; 2011: 11.024.000 Lei.
[59] The WIC were established to examine ANI's reports on alleged
discrepancies between income and wealth of over 10.000€, considering that the
RO constitution contains a presumption of legal ownership of assets. In
2012-2013, WIC issued 12 ruling on ANI's referrals, 8 were admitted (reports
well-grounded and based on solid evidence), 3 dismissed and 1 had reached
prescription.
[60] As a recent example, the NIC published a press release on 23 December
2013 condemning amendments to the Criminal Code voted by the Parliament in early
December 2013 and urging the Senate and the Chamber of Deputies to apply court
rulings from the HCCJ and the Constitutional Court on ANI decisions. http://www.integritate.eu/2051/section.aspx/3709.
[61]  ANI has found 11 cases of solid indications for committing
possible criminal acts (false statements, crimes assimilated to corruption
offences etc.).  
[62] Period 2008-2013, 
- incompatibilities: 716 cases with 54% of cases challenged in
court; 316 final decisions with 179 unchallenged and 137 final decisions by
court ( 85% confirmed and 15% lost);
- administrative conflicts of interest: 147 cases with 45% of cases
challenged in court; 38 final decisions with 21 unchallenged and 17 final
decisions by court (82% confirmed and 18% lost).
[63] NIC and ANI report inconsistent decision for a similar case on
incompatibility in November 2013. 
[64] See section 2.1.5.
[65] ANI challenged these decisions in court.
[66]http://www.integritate.eu/UserFiles/File/Hotarari_CNI_2013/2013-09-01_StrategiaANI_PtrCombat&PrevAcumulAvNejust&ConflicteInterese&Incomp_2011-2014.pdf
[67] Concretely, the system would cover a limited number of potential
conflicts, i.e. the existence of kinship until the 3rd grade (parents,
children, siblings). Public authorities would be obliged by law to enter in a
common database all tendering companies. These could be cross-checked against
declarations of interest. After a conflict of interest has been detected, ANI
would issue a warning to the head of the authority which has launched the
public procurement. Though there would be no obligation for this person to stop
the procedure, there would be an obligation to respond, and if this did not
happen, this would be notified to the prosecution which would be expected to
investigate the potential wrongdoing. The draft law to regulate the system
would also foresee for civil servants to have 20% responsibility for misused
funds – considered as a major disincentive.
[68] According to Commission Services, another weak point of the system
is that recovery of EU funds in case of fraud is almost never made from the
fraudsters, but from the Romanian public budget.
[69] The ANAF integrity unit could have a special role in this
perspective.
[70] Law No. 161/2003 and Law No 51/2006.
[71] No 855/2008.
[72] COM(2012) 410 final; COM(2013) 47 final.
[73] In a preliminary stage, in this respect, the Senate had assumed
responsibility for having decided, in the first place, that the Senator in
question was not in a situation of incompatibility and underlined that no legal
sanction had been asked against him in the definitive decision of the High
Court. 
[74] The Constitutional Court (CCR) published the motivation for the
case of this Senator – it is argued that voting against ending the mandate, the
Senate had breached legal order and rule of law, and the correct functioning of
the justice system has been impeded. By rejecting the definitive sentence the
Senate had acted as a superior level (from hierarchy point of view) to the High
Court, which is against the rule of law. The motivation was published in the OJ.
[75] The previous CVM reports recommended that Parliament should build
on the new rules to adopt clear and objective procedures to suspend
parliamentarians subject to negative integrity rulings or corruption
convictions and to fix swift deadlines for processing requests from the
prosecution to lift immunity of parliamentarians, as well as giving full
justification if Parliament does not let normal law enforcement take its
course. COM(2012) 410 final; COM(2013) 47 final.
[76] The project was challenged several times to the Constitutional
Court, a first time on 14 February by 25 senators (CCR Decision nr.81 of 27/02/2013)
and a second time on 21 March 2013 by 51 deputies(CCR Decision nr. 195 of 03
April 2013).  The third and last challenge to the  CCR was made by the
President of Romania on 26th April 2013 and is concluded by the Courts'
Decision of 19 June 2013, published in the Official Journal, (here after:  ''Monitorul
Oficial'') nr 404 on 04.04.2013. The decision admitted the objection of
unconstitutionality. This time, the issues concerned mainly art.24 which
stipulated that, in the phase of granting access to a demand of search, arrest
or detention, the competent Chamber would have exceeded its Constitutional
powers when evaluating such a demand, substituting itself for the judiciary,
because it would already be judging the criminal facts attributed to the deputy
or senator or member of the Government in cause. When published, although the
Court decision stated its definitive and compulsory character, there was a
Separate Opinion signed by 4 judges of the Constitutional Court, which
underlined that a demand to the Parliament should include a minimum of
motivation. 
[77] Law no. 96/2006 (r2), of 21/04/2006 regarding the Statute of
Deputies and Senators, republished in Monitorul Oficial, Part I no. 459 of
25/07/2013.
[78] Maximum 5 days ( from the deposition of the
report)  to submit for the approval of the request by the chamber's plenary maximum
3 days from the chamber's decision to be published in the offcial journal
[79] And when for example,
shortly after the summer, the Senate refused to lift the immunity of a Senator
requested by DIICOT, it gave no reasons. 
[80] http://www.cdep.ro/proiecte/2013/500/60/5/pl879.pdf

[81] http://www.cdep.ro/pls/proiecte/upl_pck.proiect?cam=2&idp=13809

[82] The Parliament confirmed that the Statute of deputies and Senators
is inspired by the Statute for Members of the European Parliament.
[83] Previous CVM reports including recommendations in this direction (COM(2012)
410 final; COM(2013) 47 final).
[84] 5 Deputies and 1 Senator (according to the
progress report , from 1st of January to 15 October 2013).
[85] Though the grounds for the decision appeared to be that the
incident occurred under a previous mandate, It should be noted that in a number
of previous cases the Parliament has terminated the mandate of a Member with a
final decision on incompatibility relating to a previous mandate (not in
Parliament). 
[86] COM(2012) 410 final; COM(2013) 47 final.
[87] The HCCJ has successfully handled some large cases, including cases
with over 100 defendants.
[88] COM(2013) 47 final, p. 9.
[89] Government Emergency Ordinance n° 63 of 19/06/2013. 
[90] DNA and DIICOT have identified a few provisions they consider
problematic and would like to see amended before the entry into force of the
new codes (see footnote 22).
[91]  DNA identified 22 cases. DIICOT has performed a similar evaluation
and concluded that 7 of its files could be affected.
[92] Institutional position adopted by the Superior Council of
Magistracy in its Plenum session of 10 December 2013; Public Statement Nr.
1145/VIII/3 of the DNA.
[93] For example, in July 2012, one of the recommendations was "adopt
clear procedures which require the resignation of Members of Parliament with
final decisions on incompatibility and conflict of interest, or with final
convictions for high-level corruption". COM(2012) 410 final.
[94] Art. 2: For the purposes of this Convention: (a) “Public official”
shall mean: (i) any person holding a legislative, executive, administrative or
judicial office of a State Party, whether appointed or elected, whether
permanent or temporary, whether paid or unpaid, irrespective of that person’s
seniority.
[95] COM(2012) 410 final.
[96] ROMÂNIA CURTEA CONSTITUŢIONALĂ, COMUNICAT
DE PRESĂ, 15 January 2014. http://www.ccr.ro/noutati/COMUNICAT-DE-PRES-75
[97] It seems nonetheless that fewer cases are referred from DLAF to
DNA.
[98] This covers seizure measures, temporary forfeiture of money or
other assets, measures that will be replaced by the court decisions to
confiscate or obligate the defendant to recover the damage caused.
[99] In the cases with final conviction decisions during the reference
period, the courts ruled the confiscation of the total sum of approximately EUR
2,600,000 as well as real estate and vehicles.
[100]  Regular prosecutors’ offices – 14 cases; DIICOT – 26 cases, DNA –
4 cases.
[101]  Reportedly, some prosecutors are concerned of liability in case of
misapplication of the law.
[102] Tools aimed at unification of jurisprudence, such as the Appeal in
the Interest of the Law, do not cover the level of penalties, but only points
of law.  
[103] The plea bargain system can of course influence the nature of the
sentence.
[104] This compares to and 33% at tribunal level (though here the number
of cases is small).
[105] However, out of the 512 final penalties ruled/maintained by the
HCCJ, 308 penalties have been ruled for 308 defendants in one case. If this
case is taken out of the statistics, the percentage for the HCCJ would be 47%
penalties with execution in detention and 53% penalties with suspension of
execution.
[106] COM(2013) 47 final, p7.
[107] http://ec.europa.eu/public_opinion/archives/ebs/ebs_374_en.pdf
[108] http://cpi.transparency.org/cpi2013/results/
[109] COM(2012) 410 final; COM(2013) 47 final.
[110] The risk assessment tool which has already been introduced by GAD
in 2009 could be a good basis according to independent experts consulted by the
Commission.
[111] http://sna.just.ro/Paginăprincipală.aspx
[112] Though some businesses consulted by the Commission report a slight
decrease in requests for bribes, for example during inspections by public
bodies.
[113] This is not an exhaustive list, but reflects concrete cases
presented during CVM expert missions.
[114] 40.889 calls were received between 2009 and August 2013.
[115] This is not an exhaustive list, but reflects concrete cases
presented during CVM expert missions. 
[116] Memoranda were signed between ANRMAP and ANI on 30 January 2013 on
the operationalization of an integrated information system for preventing and
detecting potential conflicts of interest and on 10 April 2013 on ensuring the
prevention and ex-ante detection of conflict of interest in public procurement.
[117] http://www.integritate.eu/UserFiles/File/Rapoarte/Raport_ActivitateaANI_Anul2012_CfLegii544_2001.pdf
[118] Study by the Basel Institute on Governance:  
http://www.baselgovernance.org/fileadmin/docs/publications/commissioned_studies/130722_Romania_ARO.pdf