REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL On Progress in Romania under the Co-operation and Verification Mechanism
Date: 2014-01-22
Institutions: European Commission
Subjects: Romania, corruption, independence of the judiciary, judicial reform













EUR-Lex - 52014DC0037 - EN











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52014DC0037

REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL On Progress in Romania under the Co-operation and Verification Mechanism /* COM/2014/037 final */









1.         INTRODUCTION
In July 2012,
the European Commission reported with an overall assessment of Romania's
progress, five years after the inception of the Cooperation and Verification
Mechanism (CVM).[1]  It
noted that many of the building blocks required were in place, and that the CVM
had made a major contribution to reform in Romania. The focus was shifting to
the implementation of reforms. The report, its methodology and conclusions were
also endorsed in conclusions by the Council of Ministers.[2]
The report was
also coloured by the events of July 2012 in Romania, raising specific questions
about the rule of law and the independence of the judiciary in Romania. The
Commission devoted an interim report to these issues in January 2013.[3] The
report concluded that Romania had implemented several, but not all, of the
Commission's recommendations on these issues. It also noted the need to
accelerate progress on the Commission's recommendations on the reform of the
judiciary, integrity and the fight against corruption.
This report assesses
the progress made by Romania since these reports in the two core CVM areas of
judicial reform and anti-corruption work. The history of the CVM so far shows
that progress is not straightforward, so that advances in one area can be constrained
or negated by setbacks elsewhere. In December 2013, decisions in Parliament
served as a reminder that the core principles and objectives of reform are
still being challenged – the intervention of the Constitutional Court was
required to reiterate these principles. This makes it particularly difficult to
assess the sustainability of reform and to judge how much domestic momentum
exists to ensure that a broadly positive trend is assured. 
It is noteworthy
that the difficult circumstances of 2012 did not blunt the determination of
many institutions and individuals in Romania to continue to consolidate
progress. The Commission believes that the monitoring process of the CVM, the
opportunities provided by EU funds and the constructive engagement of the
Commission and many Member States continues to be a valuable support to reform
in Romania. The next report will come in around one year's time.

2.         STATE OF THE
REFORM PROCESS IN ROMANIA

2.1       The Judicial System
Judicial
independence and the rule of law was a particular theme of the July 2012 report
and its follow-up in January 2013.[4]
It has also been a consistent issue in the Romanian domestic debate, with
greater emphasis placed by judicial institutions on this side of their work.
This may have influenced the level of trust in judicial institutions in
Romania.[5]

Judicial
Independence and the rule of law
The
Constitutional Order
Though not
strictly part of the judiciary, the Constitution and the Constitutional Court
are at the heart of the rule of law. The challenge to the authority of the
Constitutional Court in summer 2012 has not been repeated, and it has rather consolidated
its role as an important arbiter. The Court will continue to have a key role in
defending key principles like the separation of powers, including any future
discussion on Constitutional change.  
With the
Constitutional debate expected to return this year, it will be important to
ensure that the Superior Council of the Magistracy has the opportunity to
comment on all areas relevant to the judiciary. In particular, care will be
needed to exclude changes which increase the opportunity for politicians to
influence the judicial leadership or challenge judicial independence or
authority. For this reason, the commitment of the government to consult the
Venice Commission in particular is an important sign of Romania's commitment to
base any future Constitutional change on European norms. The Romanian
authorities have also made clear their intention to keep the European
Commission informed. 
Pressure on judicial
independence
In the summer
and autumn of 2012, the Commission received a large number of representations
from judicial institutions concerning direct criticism by politicians and
politically motivated media attacks on individual judges, prosecutors and
members of their families, as well as on judicial and prosecutorial
institutions.[6]
The number and strength of such attacks seems to have decreased since 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 many other Member States, where respect for the principle of
separation of powers and judicial independence, whether through rules or
conventions, limit the extent to which politicians comment on judicial
decisions.  
The SCM is the
main defender of the independence of justice and it has pursued this task in a
systematic and professional way, which has helped the issue to be taken more
seriously by citizens and politicians. This has proved an increasingly
important part of the SCM's tasks, and a clear and publicly-available procedure
for how the SCM will react in such cases would help to consolidate this role. The
SCM could also look at other ways to show institutional backing for applying
judicial independence in practice by supporting individual magistrates in such
circumstances.[7]
The Minister of
Justice has also led a useful initiative to set up a dialogue between the media
and magistrates. Better mutual understanding and a professional approach to
media handling in judicial institutions can both help to improve relations. But
it remains the case that progress will be difficult if criticism by those in
authority of magistrates and judicial decisions continues.  
Respect for
court decisions
This is linked
to an important aspect of the separation of powers and the rule of law, the
respect for court decisions. This operates on many different levels. Failure to
implement court orders or cases where the public administration unjustifiably
challenges court decisions constitute challenges to the binding nature of court
decisions.
This is a
problem which touches the highest organs of the state. Since July 2012, the
judiciary has more than once had to refer to the Constitutional Court following
unwillingness of the Parliament to terminate mandates as a result of final
court decisions on incompatibility of a parliamentarian.  The most recent
ruling of the Constitutional Court on this issue dates from November 2013,
however the Senate has as yet taken no action. 
High-level
appointments
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:[8] 
non-politically motivated appointments of people with a high level of
professionalism and integrity are essential for public trust in the judicial system.

The record of
the last year is mixed.[9]
In the case of the leadership of the High Court, there was no sign of interference
in the process. The situation is more difficult in the case of the prosecution,
where the nomination process launched in September 2012 had a strong political
flavour which subsequent changes in procedure failed to shake off. This may
have discouraged some candidates from applying. The final proposal of
candidates included some figures with established track records in the field of
anti-corruption. However, the overall outcome was not the result of a
transparent process designed to allow scrutiny of the candidates' qualities and
a real competition. The Commission regretted the decision not to follow a solid
procedure, noting that this put the onus of those appointed to show their
commitment to pursue the work of these institutions in tackling corruption.
In autumn 2013
another difficult issue arose with the appointments of head and deputy heads of
section in the DNA.  Again, temporary nominations to ad interim positions were
abruptly terminated, and nominations were made by the Minister of Justice which
did not fully follow the procedure of consulting the head of DNA. Following
criticism by the public and the SCM, a second, more consensual process took
place in line with the rules which resulted in a different set of permanent
appointments. The timing also led to public concerns that a link was being made
with DNA decisions on political figures, alongside public political criticism
of prosecutors.[10]

The legal framework 
The new legal Codes
Successive CVM
reports have followed the process of developing new legal Codes in Romania. The
July 2012 CVM report underlines that this represented a substantial
modernisation of the Romanian legal framework. Whilst implementation has not
been easy, particularly when parallel systems have had to be maintained, there
has been an increasing sense that the judicial leadership institutions have
been working together with the Ministry of Justice to facilitate the
transition. The preparations for the entry into force of the new Criminal Codes
have sought to learn from the experience of the past.[11]
The Ministry of Justice has also secured additional budget and posts to support
the implementation of the new Codes. It has been helpful to set slightly
longer, but realistic, deadlines for the process.
The new Code of
Criminal Procedure to be implemented from February is 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. It is
therefore particularly important that problems are anticipated and resolved
where possible. Regular monitoring of the actual effect and implementation of
the new provisions will be important once the new Codes are in force. 
A remaining
difficulty is the instability of the new Codes a few months before their entry
into force. Several legal problems have been identified, which may require
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[12]. In
addition, in December the Romanian Parliament voted a series of controversial amendments
to the Criminal Code, which were ruled unconstitutional by the Constitutional
Court (see below). 
Consistency of Jurisprudence
The introduction
of the Codes is also an important opportunity to address the issue of
consistency of jurisprudence. 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. 
The High Court
of Cassation and Justice (HCCJ) has taken a number of helpful steps to address
this issue. The
new Procedure Codes refocus second appeals on their primary cassation purpose
and reinforce the role of the High Court in improving consistency. The
preliminary ruling procedure will bring a new procedure to allow questions to
be put to the High Court for an interpretative ruling that is binding both for
the court in question and for future cases. Both in terms of training and the
publication of motivated court judgments, the High Court and the SCM have been
taking important steps to address this, including giving judges
and clerks access to court decisions from all other courts of the country. The
next step should be to ensure that the all court decisions are accessible for
the legal profession and the public at large.[13]

It remains the
case that there is a resistance in some quarters to follow the jurisprudence or
guidance of superior courts which impedes the normal functioning of the
judicial system.  The resulting uncertainty undermines confidence in the
judicial system, creating inefficiency and frustration for both commercial operators
and citizens. Heads of courts could do more to underline the importance of
consistency to their colleagues, and in particular to challenge cases where
decisions seem to diverge from High Court practice. For its part, the High
Court needs to iron out cases where its own decisions seem inconsistent. 
An additional
source of difficulties in the uniform application of the law relates to the
quality and the stability of the legal framework. The large number of Emergency
Ordinances or parliamentary proceedings which fail to respect a minimum of
transparency often give no space for proper assessment, consultation
and preparation, even when urgency is not clear.  As a result
judges, prosecutors, lawyers, businesses, administrations and citizens who have
to apply the law are confused and errors are made, and there is a higher risk
of loopholes that can be used to interpret the law in a diverging way.
Structural reform of the judicial system
Strategy for the
Development of the Judiciary (2014-2018)
The Ministry of
Justice has been working to develop a Strategy for the Development of the
Judiciary (2014-2018). The strategy aims at strengthening the current reforms
and the judicial institutions and at increasing the trust of the judiciary. The
overall goals – greater efficiency, institutional strengthening, integrity,
quality, transparency and access to justice – are consistent with the work done
in other Member States and at European level. The goal is to
have the strategy and an accompanying action plan adopted in February 2014. For
such an initiative, close cooperation between government and judicial
institutions is essential, and the Minister has succeeded in bringing the
institutions together. Consensus will also help to underpin the authority of
the strategy. It would also be important to involve other legal
professions such as barristers, notaries and bailiffs in the process.
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 inform about the weaknesses of the
system.
Management of
workload and efficiency of justice
Excessive
workload in some courts and prosecution offices is recognised as a continuing
problem, exacerbated by uncertainties about the impact of the Codes. Several helpful
trends in the judicial system, including specialisation, better use of court
clerks, and court practice measures to prevent vexatious delays, can all have
an impact. 
However, it is
also important to look at the long-standing issue[14]
of rebalancing the available resources by redesigning the judicial map. This
change would however require legislative amendment, and despite the backing of
the Ministry of Justice, it seems that the support of Parliament remains
uncertain. 
Integrity of the
judiciary
The SCM has
underlined its no tolerance policy on tackling problems of integrity within the
judiciary and with the help of the Inspectorate, a more consistent and thorough
approach has been developing. It will be important that this is also reflected
in a consistent approach by the administrative section of the High Court. It
seems to have resulted in a larger number of cases,[15] but
further monitoring will be needed to establish whether the deterrent effect is working.


2.2       The Integrity framework

The integrity
framework is one of the core features of the CVM. It relies on institutions and
rules to ensure that expectations are clear and properly implemented. It also
rests heavily on a political and cultural acceptance that integrity is an
important principle for public servants and that transgressions should bring
consequences.  
The National
Integrity Agency (ANI) and the National Integrity Council (NIC)
Over the past
year, the National Integrity Agency (ANI) has continued to consolidate its track
record.[16]
There are however continued obstacles, and differences between the progress
made on incompatibilities, conflict of interest and unjustified wealth. In
particular, ANI and its management have faced a series of attacks, which have
often seemed to coincide with ANI cases against senior political figures. The
National Integrity Council has proved its value as an oversight body capable of
explaining ANI's mandate and intervening publicly when required.  
ANI has become
more established as an institution, with the government supporting improved
resources to ensure its effective functioning. Its relations with other
agencies of government are key, and ANI has put in place a series of working
agreements to govern these relations – even if some of these bear more fruit
than others.  ANI's rulings are often challenged in court, but the data shows
that in over 80% of challenges to ANI rulings on conflict of interest, the
courts confirmed ANI's conclusions.
The courts seem
to have become familiar with the integrity framework. But case law is still
uneven, with contradictory decisions at the level of the courts of Appeal but
also at the level of the HCCJ, and court proceedings on incompatibility cases
are still long. A case before HCCJ on whether it can appeal a decision by
Wealth Investigation Commission not to forward an ANI case to court is still
pending. The length of time taken to cancel contracts signed in breach of
conflict of interest, and the poor record of government administration in
pursuing these, also reduces the dissuasive force of ANI's work, as well as
entailing a loss for the public finances.
The decision to
develop a new system for ex-ante verification of conflict of interest in the
awarding process of public procurement contracts is a valuable addition to
ANI's activities.[17]
It is clearly desirable that potential conflicts of interest can be identified
and avoided in advance, before contracts are signed. A legal obligation on
contracting authorities to respond to problems identified by ANI will be
important to make the system work. Also important would be a provision that, if
the contract went ahead and the ANI ruling was confirmed, the official in
conflict of interest would be liable for a minimum proportion of the cost of
the contract. If successful, the approach should swiftly be extended from EU
funds to all procurement procedures. 
It would be
logical to learn the lessons of ANI's current work in order to refine its legal
framework. A package now discussed with the government would include important
steps such as the immediate cancellation of a contract when a decision on
conflict of interest becomes final, more controls at the stage of appointment,
and easier access to declarations of interest. This would also be a good
opportunity for ANI to steer a codification of the integrity framework, which
should also ensure that any perceived ambiguities in the current framework are
removed.
However, such
sensible steps face the uncertainty brought about by successive attempts in
Parliament to undermine the effectiveness of the integrity framework.[18] This includes
for example attempts to change the rules on incompatibilities for locally
elected representatives in summer 2013 or the recent attempts to modify the Criminal
Code, with the effect of shielding entire categories of individuals from rules
on integrity, including on conflict of interest (see below). It also includes
cases where Parliament has proved unwilling to implement an ANI ruling, even
when supported by a court decision. A government proposal to amend the ANI law
would therefore need to strengthen and consolidate ANI's role as an important
test of political willingness to maintain an effective integrity framework in
place.
The integrity
framework: Parliament
Previous CVM
reports also pointed to the risk that parliamentary rules were seen to shield
parliamentarians from the course of the law.[19]
The January CVM report noted that the Parliament had adopted 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. The Statute seems a
helpful step, introducing more clarity about incompatibility bringing about the
end of a mandate, and applying deadlines for parliamentary consideration of requests
from the prosecution for detention, arrest or search of parliamentarians. However,
it does not require a refusal of a prosecution to be motivated.[20]
Due to a
challenge in the Constitutional Court, these provisions took effect only in
July, and the implementing regulations and a new Code of Conduct[21] have
not yet been adopted. The effectiveness of the Statute will need to be assessed
over time. Unfortunately, practice during autumn 2013 did not always indicate
that parliamentarians were looking to new rules to provide a new rigour in the
proceedings.[22]
In particular, in an echo of concern expressed in the January report, a High
Court ruling confirming an ANI decision was not implemented by Parliament.[23]  

2.3       Tackling High-level corruption

Past CVM reports
and Council conclusions have highlighted the track record of institutions
responsible for tackling high-level corruption as one of the most important
ways in which Romania is advancing the CVM objectives. Since the last
Commission reports, both DNA at prosecution level[24] and the
HCCJ at the trial stage[25]
have maintained significant track records in difficult circumstances. Both in
terms of indictments and convictions, the application of the justice system to
powerful political figures has been an important demonstration of the reach of
Romanian justice.
There have been
substantial improvements in court practice, notably in terms of speed of the
DNA investigation and of judgement.[26]
A significant loophole has been closed, to prevent a case being delayed by a
resignation from a post such as a parliamentarian, and duty defence lawyers are
on hand at the High Court to prevent the absence of a defence lawyer being used
to cause a postponement. 
Tackling
corruption within the magistracy[27]
is a key element for the credibility of the system. Here, efforts have been
made to improve both the coherence and the dissuasiveness of sanctions by
proposing a draft law to take away the magistrates' special "service
pension" after a definitive conviction for intentional criminal offenses,
including corruption.[28] 

However, it
remains the case that tackling high-level corruption faces significant
obstacles. Whilst investigations, indictments and convictions are taking place,
there is evidence that corruption is not always treated as a serious crime.
Within the judicial system, the high percentage of suspended sentences seems to
illustrate a reluctance by judges to carry through the consequences of a guilty
verdict[29] 
– in contradiction of the sentencing guidelines of the High Court itself.
Another important issue in this respect will be to improve track records in
confiscation of assets and asset recovery. Extended confiscation, to allow for
assets to be confiscated from relatives, still remains a recent and relatively rarely-used
procedure.[30] 

This reluctance is
underlined when Romanian politicians make statements which express sympathy for
those convicted of corruption. Inconsistent application of rules on Ministers
stepping down from their posts gives an impression of subjectivity. This may
also be linked to the amendments to the Criminal Code passed by Parliament in
December 2013, without prior debate or public consultation. Romanian judicial
bodies including the High Court and the Supreme Council of the Magistracy expressed
serious concern about the amendments, on the grounds that they would have the
effect of taking parliamentarians[31]
out of the scope of legislation covering corruption offences like bribe taking,
trading in influence and abuse of office. DNA data shows that some 28
parliamentarians have been convicted or are on trial for corruption.[32]
Another amendment
was a modified prescription regime which would substantially reduce the
prescription period. CVM reports have frequently commented on the prescription
regime in Romania,[33]
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.[34]
Another suggested amendment would appear to have the effect of removing any
consequences for corruption from those already convicted and sentenced.[35]
These amendments
brought reactions from the Romanian magistracy,[36] and
from the international community.[37] One
issue raised was the fact that the UN Convention on Corruption states that all public
officials holding legislative, executive, administrative or judicial office
should be covered by corruption and conflict of interest rules.[38]
The Constitutional Court of Romania ruled in January 2014 that the amendments
were unconstitutional, citing in particular the need to respect obligations
stemming from international law, as well as the principle of equality before
the law enshrined in the Romanian Constitution. The Constitutional Court ruling
was an important demonstration of checks and balances at work, but it remains
perplexing that amendments were passed which seemed to directly challenge such
important principles.

2.4       Tackling
Corruption at all levels

The CVM also
requires strong efforts to tackle corruption at all levels of Romanian society.
Surveys consistently show high levels of public concern about the prevalence of
corruption.[39]
Whilst bringing to justice high-profile figures facing corruption charges can
have a positive impact on perceptions, addressing corruption at all levels also
requires sustained efforts to reduce the opportunities for corruption, and then
to show that consequences result when it is uncovered. Such managerial and
preventive measures are still lagging behind.[40] 
The National
Anticorruption Strategy (NAS) is an important initiative which has succeeded in
extending a common framework to a wide variety of Romanian institutions. [41] Its
work to spread best practice and encourage public bodies to devote resource and
attention to anti-corruption work are clearly valuable.[42] The
next step would be to apply more consistent rules in areas like risk assessment
and internal control standards. In the absence of enforcement powers,[43]
however, the Strategy depends strongly on the prioritisation of the leadership
of the different institutions. There are ways in which a commitment to tackle
corruption can be shown, such as the willingness to notify anti-corruption
institutions of transgressions: the fact that different institutions have a
wide variety of different track records on such measures shows a lack of
consistency in approach.
Another
important approach would be to ensure that new policies and legislation are
already designed with corruption prevention in mind. An example would be
initiatives to promote decentralisation and regionalisation, where the
devolving of financial decision-making should be accompanied by a risk
assessment and steps to offset new vulnerabilities.[44]  
Specific
anti-corruption projects supported by EU funds, for example in the Ministries
of Education, Health, Justice and Regional Development as well as in National
Agency for Fiscal Administration have continued, yielding interesting results
and possible example of best practices. The Commission is looking forward to
building on these initiatives when working to develop specific projects for the
next programming period. 
In addition to
the need to tighten the means to avoid corruption and conflicts of interests in
public procurement, streamlining of legislation and ensuring more stability
emerge as key issues from magistrates and operators handling public procurement
in Romania.[45]
Several NGOs, business and independent experts have reported the continuous 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, notably from the prevention side. An important issue will be
strengthening the cooperation between ANRMAP and ANI for the setting up the ex-ante
system of verification of conflict of interest in the awarding process of
public procurement contracts, including the swift extension of the approach
from tenders with EU funds to all Romanian public procurement. 

3.         CONCLUSION
AND RECOMMENDATIONS

This assessment shows that Romania has made
progress in many areas since the previous CVM reports. The track record of the
key judicial and integrity institutions has remained positive. Necessary and
long awaited legislative changes have remained on track, and a spirit of
cooperation between judicial institutions and the Ministry of Justice is
helping managerial issues to be tackled. In this sense the situation has
benefited from the calmer political atmosphere since spring 2013.
However, concerns about judicial
independence remain and there are many examples of resistance to integrity and
anti-corruption measures   at political and administrative levels. The rushed
and untransparent amendment of the Criminal Code in December 2013 sparked
widespread concern as a fundamental challenge to the legal regime for tackling
corruption and promoting integrity, even if the Constitutional Court showed
checks and balances at work in ruling this unconstitutional. The important
measure of key appointments shows a mixed picture, with some procedures running
in an open, transparent and merit-based way whilst others are open to criticism
on the grounds of political interference.
This picture has consequences for the
extent to which the reform process in Romania can be seen as sustainable. The
resilience of the key anti-corruption institutions in the face of sustained
pressure has shown that the reform approach has taken root in important
sections of Romanian society. In contrast, the readiness with which the
foundation stones of reform could be challenged in Parliament served as a
reminder that there is no consensus about pursuing the objectives of the CVM. 

The Commission invites Romania to
take action in the following area:
 Judicial Independence

The defence of
judicial independence by the judicial leadership needs to continue. Integrity
and professionalism need to be the key factors guiding clear procedures on
appointments. In this area Romania should:
·        
Ensure
that the Code of Conduct for parliamentarians includes clear provisions so that
parliamentarians and the parliamentary process should respect the independence
of the judiciary, and judicial decisions in particular;
·        
Provide
the necessary conditions for the Supreme Council of the Magistracy to consolidate
its work in protecting judicial independence and supporting individual
magistrates faced by challenges touching on judicial independence;
·        
Take
the opportunity of the possible revision of the Constitution to follow up
existing provisions on the separation of powers with a clear statement on the
obligation of the executive and legislative branches to respect the
independence of the judiciary; 
·        
Step
up reliable information/awareness efforts towards press and public on the role
and status of judiciary and on on-going cases.

 Judicial reform

The progress
made on improving the consistency of jurisprudence and judicial practice should
be stepped up, including measures to accelerate court proceedings and to make
use of new opportunities like extended confiscation. In this area Romania
should:
·        
Press
on with addressing workload issues and pass the legislative measures needed to restructure
the court system;
·        
Equip
the judicial management with the necessary information tools on the functioning
of the justice system (such as statistical tools, case management, user surveys
and staff surveys) for better informed decision making and demonstrating
progress;
·        
Ensure
the full and timely online publication and continuous update of all court
decisions and motivations;
·        
Ensure
a process which involves all the legal professions and public administration
·        
Finalise
proceedings on the law concerning the pensions of magistrates convicted of
criminal offences;
·        
Improve
the follow-up of court judgments at all levels to ensure that rulings and
financial penalties are properly implemented..
3.      Integrity
The progress
made on the integrity framework needs to be consolidated by clarifying the
legal framework to ensure that no doubts are left about its application. In
this area Romania should:
·        
Ensure
that there are no exceptions to the applicability of the laws on
incompatibilities, conflict of interest and unjustified wealth; 
·        
The
government and ANI should work together to develop and propose legislation to
improve the integrity framework;
·        
Implement
the ex-ante check of public procurement in ANI, with a view to extending this
from only EU funds to all public procurement procedures;
·        
Ensure
that the implementation of the new Parliamentary Statute maximises the
automaticity with which final court decisions are applied.

 Fight against corruption

The resolution
with which the law has been applied to high-level corruption needs to be
maintained and extended to small-scale corruption. In this area Romania should:
·        
Ensure
that corruption laws apply equally to all on an equal basis
·        
Improve
the consistency and dissuasiveness of penalties applied in corruption cases in
all courts across Romania; 
·        
Step
up efforts in the prosecution of petty corruption;
·        
Develop
the National Anti-Corruption Strategy to introduce more consistent benchmarks
and obligations for public administration, with results to be made publicly
available.
[1] COM(2012) 410 final
[2] 24 September 2012
[3] COM(2013)
47 final. Its
analysis and recommendations was endorsed in conclusions adopted by the General
Affairs Council on 11 March 2013.
[4] COM(2012) 410 final , COM(2013) 47 final 
[5] In Special
Eurobarometer 385 on justice, the Romanian public’s trust in the judiciary, at
44%, was not
far under the
EU average(53%) and Romania ranked
17th out of the EU-28 in terms of trust
[6] COM (2013) 47 final, p
4
[7] Technical Report Section
1.1.1.
[8] For
example, COM(2012) 410 final called for "a transparent and
objective appointment process [for the anti-corruption institutions], through
an open competition using clear criteria, targeting the strongest possible
leadership and with the goal of continuity in the functioning of these institutions”. See
also conclusions from the Council of Ministers, most recently of 13 March 2013.
[9] Technical Report Section
1.5.
[10] Technical Report Section
1.5.
[11] Technical Report Section 1.2.2.
[12] Technical
Report Section 1.2.2.
[13] Technical Report Section
1.3.2 sets out the different initiatives taken so far.
[14] See for example COM(2012) 410 final, p. 8.
[15] Technical Report Section
1.4.4. This section also notes the large proportion of cases which have been
successfully challenged at the High Court, compromising the effectiveness of the
measures.
[16] Technical Report Section
2.1.3.
[17] Technical Report Section
2.1.4. sets out in detail the process intended.
[18] COM(2012) 410 final, p. 14 sets out
examples from recent years.
[19] For
example COM(2012) 410 final, p 14.
[20] COM(2013) 47 final, p.
7 recommended  that “Full justification should be given if Parliament does not
let normal law enforcement take its course.”
[21] The President of the
Chamber of Deputies has expressed an openness for the Code of Conduct to be
inspired by international practice, with a draft sent to European Parliament in
December 2013.
[22] Technical Report Section
2.2.  
[23] Even after clear
support from both the HCCJ and the Constitutional Court in a case concerning a
Senator.
[24] 2013 has seen a significant
increase in the number of indicted defendants (1073 in total). See Technical Report
Section 3.2.3.
[25] The High Court
reported figures are in a comparable order of magnitude as the 2012 figures. See Technical Report
Section 3.1.
[26] Out of the 205 DNA cases in which final
decisions were ruled in the reference period the majority (about 73%) received
a solution in less than 4 years (among which, most of them within 2 years). See Technical Report Section
3.1.
[27] A few recent cases
have been reported by both the HCCJ and DNA.
[28] This draft law has
been passed by the Chamber of Deputies but is still before the Senate.
[29] In cases conducted by
the DNA
between 1st of January 2013 and 15 October 2013, 853 defendants were convicted to
imprisonment penalties.
Eventually, 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). See
Technical Report Section 3.6.1.
[30] 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. Only one court
decision involving extended confiscation has been adopted and the case is
currently on appeal at the High Court of Cassation and Justice.
[31] As well as the
President and persons carrying out professions such as lawyers, notaries or
bailiffs.
[32] Technical Report Section
3.2.1.
[33] COM(2012) 410 final  recommended
suspending prescription periods on the beginning of a judicial investigation.
[34] Over 100 mayors and
vice-mayors are currently on trial for infringements within the scope of DNA
responsibilities.
[35] Consideration of this
amendment was postponed.
[36] See for example DNA's
press release: http://www.pna.ro/comunicat.xhtml?id=4510&jftfdi=&jffi=comunicat;
and the HCCJ:
http://www.scj.ro/sesizari%20CC/Hot%20SU%201%202013.pdf
[37] Cf. for example the
reaction of the Embassy of the United States in Romania: http://romania.usembassy.gov/policy/media/pr-12112013.html
[38] Cf. for example, the
proposed Article 4(5) of the Proposal for a Directive on the fight against
fraud to the Union's financial interests by means of criminal law COM(2012) 363 final of 11.7.2012. This is also in line
with the UN Convention on Corruption, which 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.
[39] Cf. Eurobarometer n°
374 of February 2012, http://ec.europa.eu/public_opinion/archives/ebs/ebs_374_en.pdf
and the Transparency International 2013
Corruption Perceptions Index:
http://cpi.transparency.org/cpi2013/results/
[40] As an example, it is
notable that many mayors were in a situation of incompatibility where no action
was taken until ANI
started
to highlight the problem.
Existing
administrative controls had therefore failed.
[41] For example, almost
80% local
authorities now
participate in the Strategy, having nominated contact persons for the activities related
to the implementation of NAS.
[42] The NAS also has a
portal, which offers the possibility to report data on preventive measures
indicators as well as self-assessments of public institutions.
[43] Beyond a blacklist of those
who have not published their reports.
[44] The decentralisation
law has recently been subject of a successful challenge in the Constitutional
Court.
[45] For example, several modifications
in the General
Framework Public Procurement
law in
less than one year, has
created
a lot of confusion.
In addition, the increase of the ceilings of public procurement process that
can be done without open tender procedures increase vulnerabilities.