COMMISSION STAFF WORKING DOCUMENT ROMANIA:Technical Report Accompanying the document REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on Progress in Romania under the Co-operation and Verification mechanism
Date: 2015-01-28
Institutions: European Commission
Subjects: Romania, conflict of interest, cooperation policy, corruption, exchange of information, judicial reform, prevention of delinquency, report, structural adjustment













EUR-Lex - 52015SC0008 - EN











|



52015SC0008

COMMISSION STAFF WORKING DOCUMENT ROMANIA:Technical Report Accompanying the document REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on Progress in Romania under the Co-operation and Verification mechanism /* SWD/2015/0008 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
ANAF: National Agency for Fiscal
Administration
ANI: National Integrity Agency
ANRMAP: National Authority for
Regulating and Monitoring Public Procurement
ARO: Asset Recovery Office
CCR: Constitutional Court
CNSC: National Council for Solving
Complaints
CVM: Cooperation and Verification
Mechanism
DGA: Anti-corruption Directorate
General – Ministry of Internal Affairs
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, also referred to as High Court
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
SEAP: Electronic Public
Procurement System
UCVAP: Unit for Coordination and
Verification of Public Procurement
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. The Commission
services are following developments in Romania through a permanent presence,[2]
as well as via contacts of the various Commission services with the Romanian
administration.
It has also had the benefit of working closely with the Romanian government and
key judicial and State bodies, which have provided detailed and focused
responses to a series of questionnaires, as well as during frequent
meetings with the Commission services. The Commission also benefits from
invaluable assistance from independent experts from other Member States in its
work and also draws on the various studies and reports that are available from
international institutions and other independent observers in the field of
judicial reform and the fight against corruption. 
1.                     The Judicial Process

Reform of the judicial system is
one of the two overarching themes monitored under the Co-operation and
Verification Mechanism (CVM) 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 focus on establishing
an independent, impartial, and efficient judicial system, strengthening the
consistency of the judicial process, the transparency and accountability of the
judiciary. 
1.1.        Judicial
independence
              Judicial independence,
objective and perceived, is essential for the justice system to work. The legal
guarantees for judicial independence should not only be recognised in the law
but also ensured and defended, so that society can trust that the judiciary
fulfils its task in an impartial and professional way. This trust is endangered
if there are attacks on the judicial power, if the work of the prosecution is
hindered or if court decisions are ignored. Attacks on judicial institutions
and on individual judges and prosecutors can have negative effects on the
independence and the impartiality of the judiciary. 
Corruption
and professional misbehaviour within the judiciary also undermine judicial
independence and seriously damage public trust in the justice system.
This
section reports on the activity of the main institutions playing a role in
consolidating the independence of justice in Romania. It describes the risks to
independence faced by the Romanian justice system and how the above
institutions have reacted.
1.1.1.     Checks and balances at work
The Constitutional Court (CCR)
The CCR has an important role in
further development of the rule of law and the consolidation of an independent
justice system. CCR rulings have been instrumental in providing solutions to
issues linked to the balance of powers and respect for fundamental rights that
could not be solved by the justice system alone.
In 2014 the Constitutional Court
ruled on a number of important issues concerning possible amendments of the
Constitution and modifications of the Criminal Codes voted by the Parliament:
·        
On
15 January 2014, the CCR annulled amendments to the Criminal Codes voted by the
Parliament in December 2013. Notably, these would have had the effect of
excluding elected officials from corruption laws.[3],[4]
The proposed amendments were not brought up again by Parliament in 2014.
·        
On
16 February 2014, the CCR rules on a number of amendments to the Constitution
proposed Parliamentary Committee for the revision of the Constitution in
February 2014.[5]
The draft
included a number of changes concerning justice, the functioning of the
Superior Council of Magistracy, which were also later criticised by the Venice
Commission. (See below)
·        
On
4 November 2014, the CCR ruled that the law that abrogates article 276 of the Criminal
Code[6] on
criminalising false statements in view of influencing the course of justice is
constitutional.[7]
After the entry into force of the
new Criminal Code and Code of Criminal Procedures, Constitutional Court rulings
solved major stumbling blocks and re-enforced respect for fair trials in line
with ECHR case law.
·        
On
6 May 2014, the CCR, seized by the HCCJ, proposed a solution to the application
of the most favourable law for a person accused of a crime committed before the
introduction of the new Criminal Code.[8]
The law had not included the necessary transitional provisions and this
question divided judges in all courts, including the HCCJ, risking inconsistent
interpretations. 
·        
On
3 December 2014, the CCR invalidated two provisions of the Code of Criminal
Procedure, ruling that the decisions of the preliminary chamber judge should be
given in the presence of the parties[9]
and that measures of judicial control should have a deadline. 
The CCR also ruled on laws
relating to incompatibilities.
·        
On
3 July 2014, the CCR ruled that the wording "the same function" in
the laws on incompatibilities refers to all eligible functions, confirming the
interpretation of ANI and of the HCCJ. This solved a long-standing debate between
the justice system and ANI on one hand, and the Parliament on the other.
Parliament had declined to enforce incompatibility decisions against its
Members on the grounds that the incompatibility concerned another elected
function.[10]

·        
On
16 December 2014, the CCR confirmed the constitutionality of provisions relating
to incompatibilities when a mayor is member of the general assembly or the
board of directors of regional operators.[11],[12]
Several other rulings of the Constitutional Court have had a direct impact of the functioning of the judiciary: rulings
on the status of judges and prosecutors, on the disciplinary proceedings
decisions of the SCM and JI, on mediation and on other provisions of the Code of
Civil Procedures.
Follow-up on CCR rulings
When the CCR decision declares a
law unconstitutional, the law is automatically annulled after 45 days. 
Judges and prosecutors consistently
respect CCR decisions. Although some of the rulings can be challenging for the
justice system, requiring adaptations to working methods, improved respect for
fundamental rights is perceived as an important step in consolidation and
modernisation of the justice system. Some of the rulings also require urgent
adaptations of the laws. The Ministry of Justice has sought to make necessary
amendments by emergency ordinance within the required deadline.[13] However,
there are clear examples where Parliament has not followed up on CCR rulings.[14]
Reform of the Constitution
In February 2014, the
Parliamentary Committee for the revision of the Constitution produced a new
draft Constitution, which was then analysed by the Constitutional Court and the
Venice Commission.[15]
The draft includes a number of changes concerning justice and the functioning
of the Superior Council of Magistracy. The Constitutional Court subsequently declared
an important number of the Constitutional amendments unconstitutional (See
above). The Venice Commission was also critical on the changes concerning the
justice system, in particular shifting responsibility for investigating and
prosecuting parliamentarians from the HCCJ. The Commission also called for a
more careful look at the status of prosecutors.[16]
In April 2014, Members of the
Parliament Committee for the Revision of the Romanian Constitution informed the
European Commission services that a new timeframe for the revision has been
decided, with a target date of 2015 – in part to allow time for more public
debate. They also gave reassurances that the views of the CCR and the Venice
Commission would be respected. The SCM underlined again the importance of its
participation in the debate, restating its position that any amendments to the
Constitution should not affect the Council’s role and mission, nor the
independence of judges and prosecutors, but should rather strengthen the
institutional capacity of the SCM and the independence of the Judiciary. The Committee
for the Revision of the Romanian Constitution held a debate on ruling of the
CCR and the views of the Venice Commission.[17]

To inform the debate, the
Minister of Justice set up a project to provide translations of all Constitutions
from EU Member States. The results will be debated in a public event in February
2015, and the work
of the Parliamentary Commission is expected to resume.  
1.1.2.     Threats to the independence
of the judiciary
Pressure on key institutions
Previous
CVM reports have noted the prevalence of media and politically motivated
attacks targeting judges and prosecutors.[18]
Whilst not reaching the scale of attacks of previous years (2012 in
particular), this issue remained a problem in 2014. Examples reported by the
SCM included providing intentionally misleading information to the public,
raising doubt on the professional competence of the magistrate or accusing the
magistrate (including family members) of corruption. Specific criticisms of
individual magistrates included prosecutors in the National Anti-Corruption
Directorate (DNA) and High Court judges, but also judges from lower courts such
as Constanta for example. There were also cases where senior politicians
commented directly on judges and the judiciary. 
The
CCR and its members have also been the subject of pressure in the past.[19] In
September, following rulings invalidating provisions of the Romanian data
retention laws, in the light of the European Court of Justice's ruling on the
Data Retention Directive, the rulings of the Court were publicly criticised by
some State authorities. This issue has been notified to the CCR by the
Ombudsman, and following the judgement, he was quoted as regretting that he had
done so.
The
National Integrity Agency (ANI), an independent administrative authority
responsible for investigating incompatibilities and conflicts of interest and
checking wealth declarations of elected officials, continued to be subject to
media and political pressure in 2014. On several occasions, the National
Integrity Council (NIC), the political monitoring body for ANI, had to step up
publically to defend ANI.[20]
One
document which could be used to set certain standards for politicians, at least
in Parliament, is the Code of Conduct for Senators and Deputies.[21] The
2014 CVM report included a recommendation to "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".[22]
The Code of Conduct does not include appropriate provisions touching on the
need for parliamentarians and the parliamentary process to respect the
independence of the judiciary and judicial decisions.
The defence of judicial
independence by the Superior Council of Magistracy
One of the roles of the Superior
Council of Magistracy (SCM) is to guarantee the independence of justice. Since
2012, the SCM has a procedure in place for defending the independence of
justice and the professional reputation, independence and impartiality of
magistrates. The procedure involves an inquiry by the Judicial Inspection, the
approval of the case by the SCM plenary, and finally the publication of a press
release by the SCM defending the magistrate or institution. In 2014, the
judicial Inspection reduced the investigation time to a maximum of 15 days
(compared to 45 days in 2013). This has allowed the SCM to react faster to the
attacks, even within one or two days. The SCM intends to draft procedures and
define criteria for assessing situations of threat to the independence of the
judiciary, and to analyse possibilities for supporting the magistrates
affected. No deadline for these steps has been given.
The
number of requests for defence of the professional reputation, independence and
impartiality of magistrates to the SCM increased in 2014, compared to 2013. In
2014, the SCM received 23 requests for defending the professional reputation
and independence of magistrates or for defending the independence of the
judiciary, considering that several public statements on the activity of judges
and prosecutors have breached the principle of separation of powers, affecting
the trust and confidence in the judiciary. Out of these 23 requests, 16 were
approved by the SCM, representing an increase of 35% with regard to 2013. In
two cases the SCM also notified the National Audio-Visual Council. The SCM also
published a press release to call candidates for the Presidential campaign to
exercise restraint in voicing opinions on the judiciary and ongoing lawsuits.
Whilst
recognizing the importance and benefits of the procedure set up by the SCM, NGOs
and representatives of magistrates' organisations have noted the difficulty in
securing an equivalent level of coverage for these statements, compared to the
initial criticisms. Some NGOs have also sought to defend the judiciary, through
press releases or social media, but access to the important television channels
is difficult.
The SCM is also active on this
front through international collaborations. The SCM coordinated a project
"Judiciary Independence and Accountability” together with the equivalent
organisations from the Netherlands and England and Wales within the European
Network of Judicial Councils (ENCJ).[23]

The magistracy's media work
Most
courts visited during CVM missions appoint a judge as an official spokesperson,
but they reported that they had not received special training for this role.
They can issue press releases if a judge is unfairly attacked but this does not
seem to be done systematically.[24]
From
the Ministry of Justice, the SCM, the HCCJ and the General Prosecutor’s office,
there is a general move to provide more or better information to the media on
developments in the justice system, including on specific cases. Both the SCM
and the Ministry of Justice have organised several information and discussion
meetings with representatives of the press. In May, the SCM amended its
guidelines on the relationship between the judiciary and mass media, taking
into account the provisions of Article 277 of the New Criminal Code, relating to
the disclosure, without right, of evidence or confidential information on an
on-going criminal case. Judges and NGOs have also called for the National
Audio-Visual Council should play a more active role in sanctioning media when
acting in a way that does not respect professional ethics.[25] 
1.1.3    Appointments
The
risk of political interference in senior appointments has been one of the major
concerns with regard to judicial independence. CVM reports have underlined the
importance of transparent and merit-based selection procedures.[26] In
2014, there were no appointments of judges or prosecutors at the highest level.
One major appointment will soon be made, following the resignation of the Chief
Prosecutor of DIICOT in November. The procedure is as follows: the Minister of
Justice proposes a candidate, the SCM is consulted on the choice, and final
appointment is made by the President of Romania. The procedure therefore includes
a strong political element in terms of the role it gives to the Minister of
Justice.[27]
Guidelines from the Venice Commission on the independence of prosecutors point
to the importance of avoiding too great a role for political figures in
appointments to the prosecution.[28]
The SCM has proposed to the Minister of Justice an amendment to the laws on
judges and prosecutors, which would align appointment of prosecutors on the
procedures used for judges. This proposal would need to be presented by the
Government, for adoption by the Parliament. It could be in place in time for a
number of important appointment procedures expected in 2016: including the
General Prosecutor, DNA Chief Prosecutor, as well as the President of the HCCJ and
the President and Vice-President of ANI. To add to the importance of appointments
in 2016, it will also see elections for a new composition of the SCM, as well
as Parliamentary and local elections.[29] 

For
other magistrate positions, including leading positions in courts and
prosecutors' offices, posts are filled through open competitions organized by
the NIM and SCM. These competitions are organised for entry into the
magistracy, promotions to higher level courts and appointments in leading
positions. The competitions for entry into magistracy are also open to lawyers
with at least five years of professional practice. The Commission has not
received representations concerning political interference in these processes; though
there has been criticism from magistrate associations concerning the
transparency of the process, especially for competitions for HCCJ positions.
1.2.        The new Codes
Legal
systems periodically have the need to update the Codes that are the basis of
the judicial process and civil and criminal law. The demands of social change,
fundamental rights, economic change and European law can all call for a
modernisation and simplification of legal Codes. This can help to improve the
quality of justice decisions, as well as the efficiency of the judicial process
in rendering predictable and timely decisions. Such reforms could be expected
to be needed relatively rarely, so have a particular need to be based on a
strong consensus and to be well prepared. They are a sensitive and complex
undertaking, and as such are a challenge for government, legislators, the legal
system and legal practitioners.  
This
section describes the status of the implementation of the new Civil Code and
Code of Civil Procedures and the new Criminal Code and Code of Criminal
procedures. It describes how the key institutions involved, and the judiciary
more broadly, have coped with the changes and it describes the progress since
the last report. 
1.2.1.     Criminal codes: one year
down the road
The
new Criminal Code and Code of Criminal Procedures entered into force on 1st of
February 2014, as planned. Judges and prosecutors, the SCM and the Ministry of
Justice, were all closely involved and despite previous concerns about the
scale of change needed, there are few reports of major challenges and no
evidence received of disruption in the prosecution and trial of cases. Overall
the messages received by the Commission have been of a judiciary expressing
satisfaction on having a new modern criminal code. 
Intensive
training on the new codes organised by the National Institute of Magistracy (NIM)
and the National School of Clerks (NSC) launched before entry into force have
continued throughout the year. The training is considered to have been well
targeted and professionally organised, and have been available centrally, at
local level and through e-learning. Other legal professions have also been
involved in the training.[30]
The HCCJ has also organised videoconferences on the Codes involving the SCM,
the NIM and courts of appeal.
The
Minister of Justice has continued to take steps to supplement the number of
positions (court clerks, judicial police, judges, and prosecutors), in
accordance with the Memorandum “Preparing the judicial system for the entry
into force of the new codes”, and to secure budget increases for implementing
the reforms. The government set aside a specific budget for the transition to
the new codes.[31]
The courts and the prosecution offices at all levels appear to have undertaken
the necessary re-organisation to adapt to the new codes. 
Monitoring and evaluation 
In December 2014, the Minister of
Justice organised the first meeting of an inter-institutional Evaluation
Commission to monitor the implementation of all four new Codes. This builds on
an inter-institutional group active since June, and involves the key
institutions: the SCM, the HCCJ, the Public Ministry, DNA and DIICOT. This
Evaluation Commission would bring together information on the state of
implementation of the four codes and propose solutions to the problems
identified. Where legislative solutions were needed, some of these would be
fast-tracked: others would be subject to a longer reflection. 
In parallel, the SCM also decided
to step up its specific work on evaluating the implementation of the codes,
especially with regard to efficiency, human resources distribution and the need
for legislative amendments. The SCM reports that the civil and criminal codes themselves
have not raised many issues, but that the implementation of the procedural
codes is more difficult.  
Feedback
mechanisms at the level of courts and prosecution offices are in place for monitoring
the application of the new Codes and notifying problems and questions.[32]
Several major courts are setting up their own evaluation mechanisms. A
country-wide evaluation will be conducted by February 2015. 
Preliminary
feedback pointed to a few legal issues of discrepancies between provisions or
competing provisions. Often pragmatic solutions have been found to fill the gap
until a permanent solution.[33]
The prosecution has also looked for practical solutions to new problems. 
However,
most problems reported refer to general organisational issues faced by the
justice system. These are often not new, but have become even more acute with
the implementation of the new Codes. This is the case for workload pressure for
judges, prosecutors and court clerks, management of cases and the distribution
of work between judges and clerks. Logistics and resources issues are also
still important, with IT adaptations not finalised, obsolete IT systems, an
insufficient number of courtrooms (courts are faced with two new institutions),
as well as pressure on offices for judges or rooms for organising access to
their file for the defendants.
Most favourable law
The
application of the principle by which a person should not be disadvantaged where
there has been a change in the law[34]
was the first important issue in the implementation of the Criminal Codes. There
were no transitional provisions in the Code on how the principle should be
applied. It quickly became clear that there was no consensus between two
approaches: a “global” approach, where the court determines whether the old or
the new code is most favourable, and applies it throughout the case; or the “pick
and mix” approach, the court arrives at the most favourable result by drawing
on different provisions from both the old and the new codes (e.g. the
prescription period from one code, penalties from another).
After
two months of entry into application of the new Criminal Code, the HCCJ had
received nine preliminary questions concerning the application of the most favourable
law. 
On
14 April, the HCCJ ruled on one preliminary question in favour of the “pick and
mix” approach, in a question related to prescription regime of penalties.[35] The
HCCJ decision was published in the Official Journal on 30 April and was
therefore applicable to all courts.
On
6 May, the CCR, seized by the HCCJ, ruled in favour of the global approach.[36] The CCR
decision is binding, so any new court decision must follow the same line. Later
that month, the HCCJ confirmed the global application of the most favourable
criminal law for continued offences and definitely closed the issue of the most
favourable law in line with the CCR's interpretation.[37] Although
these issues could have been anticipated and tackled through transitional
provisions in the law, this solution has since been acknowledged as definitive.
However, a draft law to define transitional provisions for the application of
the most favourable law, presented by the Government at entry into force of the
new Criminal Codes, is still pending in Parliament.
Pending amendments to the Criminal Code and Code of Criminal Procedure
A
series of important issues, errors and omissions in the Codes came to light
before or at the time of the entry into force of the codes on 1 February 2014. The
Government, after consultation with the SCM, quickly adopted amendments to
address most of these issues, but parliamentary consideration has not been so
swift. 
On
5 February, the Government adopted an emergency ordinance covering many of the
most urgent questions.[38]
The amendments stayed within the bounds of the criminal policies of the new
Criminal Codes; but if not addressed, the identified issues risked creating major
shortcomings at the level of courts, prosecutor offices and prisons. Though in
force, the procedure requires approval by Parliament, and this is still pending:
the Minister of Justice has expressed the hope that this will be covered in the
general process now under way to address the outstanding issues (see above).
The
Government addressed several other issues in a draft law.[39] These
included amendments to provisions on initiation of prosecution, the obligation
to order expertise and the interpretation on the application of the most
favourable criminal law. The law is still pending in Parliament. In addition,
as mentioned above, the provisions regarding the interpretation of the most
favourable law are not in line with the decision of the Constitutional Court
and will have to be adapted, as well as the need to update the law to reflect CCR
decisions on the preliminary chamber and judicial control. 
In
addition to these changes promoted or planned by the Government,
parliamentarians have proposed amendments to the Criminal Code or the Code of
Criminal procedures. Such amendments could be expected to require at least the
same standards of consultation and scrutiny as amendments proposed by the
Government. 
Rights and freedom/preliminary chamber judges
The
introduction in the Code of Criminal Procedure of the institution of the
“rights and freedom” and the “preliminary chamber” judges, was not implemented as
a separate cadre of specialised judges (as was the original intention). The
tasks of considering applications for searches and preventive measures, checking
the legality of evidence gathered and the procedural acts undertaken in the
course of the prosecution, which were intended for these new institutions, are still
being undertaken by judges retaining these previous functions. 
The
task of the preliminary chamber judge was taking place in judicial offices, without
the presence of the parties. In December, the Constitutional Court ruled that
the parties should be present. This will require the judges to organise
hearings, so will have important logistical consequences on the organisation of
the work of the judges in criminal sections and on the availability of courtrooms
already under great pressure. The SCM and the HCCJ however consider that this
change can be accommodated. 
Corruption penalties and prescription (limitation) periods
Under
the new Criminal Code, some of the penalties in relation to corruption offences
are reduced. This has consequences on the prescription periods for corruption
offences, by affecting the length of the maximum period possible for starting
the lawsuit after the crime was committed. For example, for passive bribery, in
the old Criminal Code the lawsuit would have to start within 10 years, whereas
in the new Criminal Code the lawsuit has to start within 8 years after the
crime was committed. 
In
Romanian law criminal lawsuits and trials must also be ended within the "special"
prescription period.[40]
Whereas in the old Criminal Code the special prescription period was 1.5 times
the prescription period, in the new Criminal Code the special prescription
period is 2 times the prescription period. This may therefore extend the
prescription period. For example, for passive bribery, the special prescription
period was 15 years in the old Criminal Code and is now 16 years in the new
Criminal Code. As a result, fears expressed by some stakeholders before the
entry into force of the new Criminal Code – that the new Codes might make the
failure of corruption cases due to prescription more likely – have not
materialised.
Nevertheless,
NGOs have long voiced their concern with the system of special prescription
period, as it risks that justice is evaded by creating an incentive for
defendants to delay court proceedings as long as possible.[41] Even
if the limitation of appeal possibilities within the new Criminal Codes makes
it more difficult for defendants to extend the proceedings, there will continue
to be an important responsibility on the prosecution and the courts to finalise
all proceedings in time and counter attempts from defendants to delay the
proceedings.
Opportunity
principle
The
new Criminal Code and Code of Criminal Procedures introduce the principle of
opportunity, which says that a crime will be punished only if its prosecution
is considered opportune. This means that public prosecutors have the discretion
to discontinue the prosecution of a crime. The reason for this can be to free
up capacity in the legal system to prosecute serious crimes by not prosecuting
some minor offences; or when the prosecutor feels the weakness in evidence
makes a conviction highly unlikely. In cases of multiple offenses, it also
allows the prosecution to focus on the crime that is the best evidenced or the
most serious without having to prosecute all offenses.
The
General Prosecution Office is encouraging the use of the opportunity principle as
a way to solve workload issues, by closing many petty cases. It seems that prosecutors
have started to use this possibility, as more than 85000 cases were dropped in
2014. When dropping charges, the prosecutors have the possibility to apply
coercive measures instead (such as community work, fines or victim
compensation). An assessment is planned in 2015 and guidelines on the use of
the opportunity principle will be drawn up. Experts consulted by the Commission
underlined that an important element in this change will be the need for formal
safeguards to ensure that a decision to discontinue a case is well-founded and
can be challenged. This can be a particular issue in corruption crimes, where
the lack of an identifiable victim means that there may be less chance of such
a decision being scrutinised.[42],[43]
The
Service of guidance and control (a structure recently set up, which became
operational at the end of October 2014), will organise the assessment, together
with the counsellors of the Prosecutor-General. Attention will be focused on decisions
where cases were dropped against repeat offenders, where dropping charges was
subsequently invalidated (either by the hierarchically superior prosecutor,
either by the court, upon complaint of the injured parties), and all cases
involving misuse of office.
1.2.2.     Civil codes: still in
transition 
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 1 of January 2016.[44]
Quarterly
meetings are organised with the presidents and vice-presidents of the courts of
appeal and with representatives of the HCCJ and the SCM, to discuss the
implementation of the new codes. The HCCJ has continued its efforts to define
harmonised practices in civil courts. A systematic monitoring of the
implementation of the Civil Codes started in the second half of 2014, and a
first assessment of implementation by the SCM suggested that there had been an
overall fall in workload as a result of the codes: an increase in the number of
cases of 5% at first instance courts but a decrease of 17% in tribunals and
courts of appeal. The average duration for having a first instance decision has
fallen to 1.5 years and the timing for the first hearing has also decreased to
about six months. More time is needed to have a thorough assessment. In interviews
with court managers and judges throughout the country, judges continued to
highlight the organisational and workload issues that cause delays in
proceedings and transitional problems in the effective application of the codes.

The
new Code of Civil Procedures applies only to cases introduced after the entry
into force of the Code. In most courts there are still many cases pending under
the old Codes, so the Courts still have to cope with parallel systems. This
situation complicates the organisation of court hearings and proceeding of cases
for judges, clerks, parties and lawyers alike. 
2015
should see a gradual clearing of these legacy cases. But it will also be the
year of preparation for the provisions of the new Code of Civil procedures to come
into force in January 2016. Their entry into force had been delayed essentially
for organisational and resources issues, including the lack of courtrooms. It is
clear that in many cases, this problem has not yet been solved. Swift action
would be required to avoid the need for another delay, a possibility which has
already been mooted by the SCM.
1.3.        Consistency of
jurisprudence and predictability of the judicial process
The unification of jurisprudence has been used as a
term to designate the need for consistent judicial decisions on similar cases
taken by different courts and judges. This is an important element of quality
and predictability of the judicial process, supporting trust in the judicial
system as well as its efficiency. The predictability of judicial decisions is
part of the accountability of the justice system towards the society it serves.
Different
elements contribute to unification of jurisprudence: the organisation of the
system in terms of management and the Procedural Codes; the availability and
transparency of court decisions; and the awareness and training of judges and
prosecutors on the need for consistency. Broader issues of the quality of
public administration and quality of legislation also play a role. This section
analyses progress in these areas, consistently recognised as a priority by the
Romanian authorities.
1.3.1.     Legal consistency
mechanisms 
The
role of the High Court of Cassation and Justice (HCCJ) in unification of
jurisprudence has been reinforced in the new Procedure Codes (Civil and
Criminal) and the HCCJ has worked in a number of different ways to progress. As
well as the existing mechanism of appeals 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.
Mechanism of preliminary ruling in criminal matters 
From
1 February 2014 until the end of 2014, the High Court received 31 preliminary
ruling requests in criminal matters, and settled 28 of them. About half of the
questions referred to the interpretation of the most favourable law.[45]
In
order to ensure the unitary implementation of the mechanism of preliminary ruling
provided by the new Code of Criminal Procedures, the HCCJ has set out guidelines.
These are now published on the HCCJ website. So too are all requests for preliminary
rulings, their solutions and relevant information, so that the process is
transparent and can be followed through the different stages. The General
Prosecutor also participates in the debate of the preliminary ruling panels.
Mechanism of preliminary ruling in civil matters
As
for the mechanism of preliminary ruling under the new Code of Civil Procedures,
the HCCJ also agreed guidelines, a model request for a preliminary ruling, and a
model judgment and model report on the question of law. The system is therefore
streamlined and made more predictable both for courts requesting a preliminary
ruling, and for the HCCJ itself. 
In
2013, the HCCJ received 3 preliminary ruling requests and settled 1. In 2014,
with the increasing application of the new Code of Civil Procedures, the number
of preliminary ruling requests rose to 17. In 2014, 13 requests were settled.
Appeal in the interest of the law
So
far as appeals to the High Court in the interest of the law are concerned,
these have been small in number compared to 2013 (perhaps because alternatives
are now available).[46]
The number of appeals in the interest of the law lodged in 2014 has been of 9 in
civil matter and 5 in penal matter. The number of appeals in the interest of
the law settled in 2014 has been of 6 in civil matters and 3 in penal matters.
1.3.2.     Management action
The
High Court, the General Prosecutor, the SCM, and the Presidents of courts have
voiced their consciousness of the importance of consistency of judicial
decisions, and have sought to use their management processes to address the
issues. Part of this has been communication – this has been an important
element in the video-conferences organised by the HCCJ with the courts of
appeal to prepare for the Codes. It has also important in initial and
specialised training provided by the National Institute of Magistracy and the
National School of Clerks. With the coming into force of the new Codes, they
issued standard guidelines for procedural acts, including model documents, to
be used by judges and clerks. These guidelines were distributed to all courts.
Courts
have also started using the mechanism of agreements “in-principle”. This
approach was first used by the administrative section of the High Court. It
offers an agreement on a point of law as a result of courts discussing
questions of law internally and trying to reach a consensus. Both the HCCJ and
the other courts confirmed that these meetings to discuss such issues take
place regularly, about once a month in the Chambers of the High Court. The
meetings vote if necessary but judges are not bound by the results. The
“in-principle” agreements of the HCCJ are published on their website and sent
to the courts of appeal.
The
General Prosecutor continues to publish guidelines and analyses for all
prosecutors to help applying the Codes and ensure a uniform practice.
The
Judicial Inspection also contributes to the detection and correction of
non-unitary practice through thematic horizontal inspections. In 2014, the
Directorates for judges and for prosecutors have each carried out respectively
4 and 5 horizontal inspections. Corrective actions are implemented as a result
of their reports (see below). 
Publication of jurisprudence
Publication
of the jurisprudence is a prerequisite for consistency. If judicial decisions
are readily accessible, courts can refer to and follow them. This can also help
lawyers, administrations and businesses. So publication of all case law is an
essential step in the unification of jurisprudence, as well as a step in
improved accountability. 
The
HCCJ continues to publish its decisions on its website.[47] It
publishes résumés of key decisions as well as full texts of all decisions. The result
is that there are now with over 4,000 résumés and over 100,000 (anonymised)
full texts, including the decisions concerning preliminary ruling requests,
available online. The HCCJ has recently revamped its website, improving the
search function and the user-friendliness of the information. The HCCJ has received
very positive feedback for its new website. 
Other
courts of appeal also publish their decisions, including from their lower
courts, again on their own website. However, the official system internal to
the justice system, ECRIS, although in theory available to all judges
throughout the country, is not always accessible and is not easily searchable.
Progress on a new system to be funded through the Romanian Institute for Legal
Information – ROLII – has been very slow. In July, ROLII published a call for
proposals to develop a public-private partnership aiming at publishing the case
law of the courts and developing a common way to erase personal data in the
courts’ decisions. According to the draft contract, the implementation would
begin end 2014, and the "go live" would be for August 2015. 
1.3.3.     Obstacles to the
unification of jurisprudence 
Despite
these efforts, inconsistency remains a problem in the Romanian judicial system.
Cases are frequently raised which illustrated the problem, and in particular
suggest that courts are not proactively accepting that they have a
responsibility to prevent inconsistency. For example, one law firm advising
clients on a standard form contract used by a Romanian re-insurer found that different
Romanian courts had different interpretations regarding the same issue. Two
colleagues faced with the same issue on social benefits went to court, in two
different cities – and received two different decisions. The decisions about
the same issue were opposite. A businessman losing a dispute with the tax
authorities in one city won in another city. There have been inconsistencies in
the interpretation of the incompatibility laws, which have resulted in seizing
the Constitutional Court, with an example of an Appeal Court not following the
interpretation of the High Court and not requesting a preliminary ruling.
Organisational issues
The distribution of work between
judges and court clerks in most courts is often the source of criticism in
general, and only rarely do court clerks seem to have the specific task of
searching case law. Yet many of the cases dealt with by first instance courts in
particular are repetitive cases (for example cases against the administration
on pensions or pollution tax). Failure to rely on existing cases both increases
workload and risks diverging decisions. The public administration also has a
responsibility to ensure that once a decision is taken, it does not
successively return to court on the same issue. 
Accountability
Previous CVM reports have noted
the tendency of some judges to see diverging decisions as reflecting the
independence of the judiciary.[48]
If the independence of each judge in his/her decisions and his/her right not to
follow previous decisions has to be safeguarded, judges are also accountable to
the public in providing a reasoning on why another previous decision cannot be
applied again. When asked about this point, the SCM stated that the
independence of the judiciary cannot be an excuse for non-unitary practice. There
is a thin line between incoherent decisions on straightforward administrative
matters, and bringing forward new legal solutions that elevate the quality of
judicial decisions.
Legislative process and quality of legislation
The
quality and coherence of legislation is a contributory factor to the
consistency of jurisprudence. Many legislative proposals are put forward or
amended by parliamentarians, but also by the government, without thorough
analysis on the legal consequences on the existing framework. As a result, the legal
framework is not always coherent and unambiguous. Examples within the CVM remit
are amendments relating to integrity and incompatibilities, or of the Criminal
Code. The Ministry of Justice has finalised a project (financed through EU
funds) of a portal consolidating existing legislation, N-LEX,[49] and
part of the motivation has been to facilitate a global picture of existing
legislation. Also important will be the “Strategy for strengthening the public
administration” adopted by the Government in October 2014.[50] 
The use of Government Executive Ordinances
As
an exception to the normal legislative process, the Government regularly adopts
legislation through Government Emergency Ordinances (GEO).[51] The Constitutional Court is regularly called upon to rule on GEOs, and CCR judges have been
critical on the overall number of GEO, as well as the respect for the criterion
of urgency. Rushed legislative processes impact the quality of the legislation,
and its application by administrations, citizens and businesses and its
enforcement by courts risk being inconsistent.  
The
use of GEO can be challenged by the Ombudsman. Past CVM reports have noted the
importance of this function in terms of the balance of powers and quality of
the legislative process that are necessary for an independent and effective
justice system.[52]
The ombudsman now also has the right to seize the High Court for recourse in
the interest of the law or to seize administrative courts for illegal
administrative decisions.[53]
In
January 2014, the ombudsman elected in February 2013 resigned. After an interim
period of several months, a new ombudsman was elected in April with the support
of only one party (the CVM report of July 2012 had noted: “The Romanian
authorities need to ensure the independence of the Ombudsman, and to appoint an
Ombudsman enjoying cross-party support, who will be able to effectively
exercise its legal functions in full independence.”[54]). 
Regarding
the constitutionality of laws and emergency ordinances, the current Ombudsman has
expressed the view that the Ombudsman should not get involved in questions that
concern the balance of powers between state authorities. He has raised
constitutionality questions based on fundamental rights issues brought forward
by NGOs, but has refrained from seizing the CCR on the constitutionality of
emergency ordinances on very political issues (such as electoral matters). Some
CCR judges have raised the implications of this limitation of the Ombudsman
role on the need for constitutional checks and balances.
As
a result of this limitation, the Ombudsman has been asked to challenge the use
of GEO but he did not act. In one of the cases concerning "migration"
to other political parties of locally elected officials during their mandate,
the ordinance was eventually declared unconstitutional by the CCR, after an
appeal by political parties. However the law had already taken effect, so the
question arose of what action to take in respect of such cases. An earlier submission
of the case to the CCR might have allowed the issue to be clarified before it
started to apply. 
1.4.        Structural reforms and key
institutions
Structural
reforms to the administration of justice have been shown to have a direct
impact on the effectiveness of justice. Issues like the speed of the system,
its independence, its affordability, and the ease of access are all important
factors in an effective justice system. This is true for citizens, but also for
businesses, and justice is a key element in a successful business climate.[55] 
              1.4.1  The Strategic
framework
              Strategy for the
Development of the judiciary 2015-2020
The
Ministry of Justice has presented a Strategy for the Development of the
Judiciary 2015-2020, setting out a vision for the judiciary and the key steps.[56] This
document draws heavily on CVM recommendations, and studies developed with the
World Bank, in particular the Functional Analysis of the Romanian judiciary.[57] This
strategy and its action plan are also designed to be the basis for defining the
priorities for EU funding in the area of justice. A first draft was ready in
September 2013, but was taken forwards slowly. Consultations of judicial
institutions and legal professions and professional associations have taken
place, though some organisations have characterised the process as rather
formal, and some relevant stakeholders do not seem to have had a full
opportunity to comment. In October 2014, an updated draft was put into public
consultation, though not everyone seemed to be aware of the opportunity to
comment, and the consultation period was later extended to allow more NGOs
involvement. Two discussions between NGOs and the Minister of Justice were
organised. 
The
strategy document is a high level description of vision and objectives, but
would need to be backed up by further details on actions and deadlines, so an
action plan will follow. The Minister of Justice has promised to finalise this
by April 2015. Extended consultations with all stakeholders would be organised in
early 2015.
Objectives of the strategy
The
strategy sets out a series of underlying principles: compliance with the rule
of law; separation of powers of the State, strengthening judicial independence;
loyal cooperation between institutions; respect for human rights;
information-based management; and promotion of a culture of dialogue. It then
identifies the problems of the judiciary and proposes a series of objectives for
the development of the judiciary for the period 2015-2020: Rendering justice
efficient as a public service; Institutional strengthening of the judiciary;
Integrity of the judiciary; Ensuring the transparency of the act of justice;
Improving the quality of the act of justice; and Guaranteeing free access to
justice.
              1.4.2  Resources
The Ministry of Justice 2014 budget
for the judicial system (excluding Public Ministry and HCCJ) represented a 3.6%
increase on 2013. In particular, the Ministry was able to secure specific
funding for the entry into force of the codes, over 50% higher than those
approved in the beginning of 2013. In the budget for 2015, the draft budget for
the Ministry of Justice is 17% more than the initial 2013 budget and 5.6% more
than the initial budget for 2014. 
Throughout 2014, the Minister of
Justice has continued to take steps to supplement the number of positions
allotted to courts and prosecutor offices, in accordance with the Action Plan
included in the Memorandum “Preparing the judicial system for the entry into
force of the new codes”, approved by the Government on 26 September 2012. In
particular, decisions were taken for supplementing auxiliary positions in
courts and prosecution offices (200 posts in total). In parallel, the National
School of Clerks, the National Institute of Magistracy and the SCM organized
the competitions and the training for the new posts, so that they could be
filled as quickly as possible. The posts are allocated by the SCM to the courts
and prosecutor offices.
The DNA was supplemented with 50
judicial police posts, the majority of whom part of which will work on
identification and freezing of criminal assets.
In addition to the national
budget, the Ministry of Justice also benefited from a number of external
sources. This included a loan from the World Bank within the project “Judicial
Reform Project” (€16,5m in 2014), used for infrastructure work in the courts of
Iasi, Cluj, Oradea, and Sibiu, and for IT developments. The Ministry also
implemented 13 projects funded by external sources targeting strategic domains
for the development of the judicial system.[58]

Financial Framework
for Structural Funds 2014 - 2020
The Ministry of Justice has
coordinated the negotiations for future financial allocations for the judiciary
available from the Structural Funds allocated to Romania for the period
2014-2020, carrying out an extensive process of consultation with all the
stakeholders within the judiciary. The Operational Programme Administrative
Capacity (OPAC) is of particular importance for the judiciary, given that two
of the specific objectives of the programme finance interventions for the
benefit of the judiciary. The objectives related to the judiciary within OPAC
2014-2020 aim to improve the efficiency of the judiciary, through measures for
strengthening their institutional capacity and strategic management, and to
increase the quality, accessibility, transparency and integrity of the
judiciary, by improving professional knowledge, development of instruments,
procedures and support programs to facilitate the access to justice, as well as
enhancing transparency and integrity at the level of the judiciary.
              Facilities
Although
some buildings have been renovated and there are plans within the Ministry of Justice to renovate regional courts, many courts,
especially larger ones, do not have sufficient council rooms, or enough offices
for judges or clerks, and many lack up to date IT facilities. Facilities are
often inadequate for parties or lawyers coming to court for their case. 
The
entry into force of the new codes has added to the pressure by introducing new
categories of proceedings. In civil matters, the entry into force of the most
courtroom-intensive provisions were delayed until January 2016, but this will
put a lot of onus on 2015 for undertaking the necessary work, and there are
clear doubts about readiness. In criminal matters, part of the pressure had at
first been relieved by having the work of the preliminary chamber judges being
done in back offices, but the CCR has now required that the preliminary judge
convenes the parties (see above). This additional constraint increases pressure
for solving the organisational and management issues in court. 
On
10th of December 2014, the Government approved, three National Investment
programs for rehabilitation of existing buildings and also construction of new
buildings within the next three years, namely: Infrastructure consolidation of
courts in 27 cities; development of Justice District in Bucharest; Infrastructure
consolidation of all prosecutors´ offices attached to the tribunals. 
              1.4.3  Efficiency of the
judicial process
Workload
Workload
is a recurrent problem within the judiciary and a major source of complaint
from magistrates and clerks. The workload is an issue at all levels of courts.
The average workload per judge in the first semester of 2014 is 789 at Judicatorie
level, 670 at Tribunalele level and 600 at appeal level. At the start of 2014,
for all courts there were more than 1.2 million cases pending, while incoming
cases amounted to more than 2.2 million. 
The
legislative framework has a central impact on workload. This was an important
aspect in the four new codes, and the SCM have identified an overall reduction
in workload (see above).  The use of plea bargaining offered by the new Code
for Criminal Procedures should have a positive effect on the workload of
courts, as procedures can be finalised quicker.[59]
Another
key aspect of workload concerns the weight of tasks between courts. There are a
number of very small courts with only 2 or 3 judges, and the fact that every
court needs an attached prosecution office means an office with only one or two
prosecutors. These courts often have a very low workload, high overheads, and
their small size increases the risk of corruption or partiality. In 2013, the
Government proposed a reform of the judicial map, closing down 30 courts and
prosecutor’s offices with low workload. The draft law was rejected in the
Chamber of Deputies in June 2014 and is now under discussion in the Senate,
where there is already a motion to reject the proposal. Progressing with a
smaller number of courts has been mooted as a possible compromise.
The
General Prosecutor has also raised the possibility of closing down some of the
small prosecution offices and attaching the prosecutors to a higher court. This
is particularly relevant as the criminal cases represent at maximum one quarter
of the cases in the small courts.
Another
issue of workload is the division of tasks between judges and law clerks. At
present this seems to vary from court to court, according to the specific court
organisation or each individual judge to each judge. A draft law has been
pending for some years setting out possibility for the court clerks to take
over some part of the legal work of the judges. However, the draft has been
blocked in Senate. The Ministry and the SCM are working on a new draft law to
unblock the situation. 
Alternatives to court proceedings
also play a role in workload. For example, the enforcement of court decisions
had required two stages in court, the court decision and then the authorisation
of a bailiff to apply the decision. A law amending the Civil Procedure Code was
adopted in October 2014 to address this issue. [60]
Give the bailiff the authority to enforce some court decisions automatically
could relieve the courts of about 300 000 cases a year.
Another example is mediation. The
new Code of Civil Procedure had a provision specifying that the judge should invite
parties to participate in an information session about mediation, according to
special laws, with the intention of promoting an alternative to court
proceedings. Legal provisions suggesting that parties should compulsorily attend
an information session on mediation and bring proof of this before going to
court were annulled by the CCR in 2014, as mediation should only be a voluntary
alternative. 
              1.4.4  Management of the
courts
In
May, the SCM created a working group on the efficiency of court’s activity. 4
actions were set in order to improve the efficiency and the effectiveness of
court’s activity:
·        
setting the performance
indicators for the efficiency and effectiveness of the courts’ activity, as
well as time standards;
·        
ensuring the quality of
data as well as the related communication and analysis;
·        
allocation of human
resources (judges, court clerks);
·        
Periodical monitoring
of the first 3 actions. 
The project identified five
indicators of performance[61]
and quality designed to assess the efficiency of courts’ activity. A first
interim report was presented in August 2014 including the objectives, the
methodology, conclusions and methods for their implementation were submitted
for observations to the courts countrywide, together with a first analysis of
data from the courts and a series of recommendations. 
The SCM has also developed an
application in the field of judicial statistics (StatisECRIS) designed to offer
a clear image and information on the relevant judicial statistics in each
court.[62]
This is intended to become a managerial instrument available for courts’
leadership regardless of the level of jurisdiction, and to enable the
collection of consistent statistics for the SCM. The testing phase randomly
selected five courts at different levels to take part, and others have
requested to be involved. The testing phase has been completed and the
application was implemented in all courts (including the HCCJ) by the end of
2014. 
              1.4.5  Enforcement of
court decisions (civil, administrative and criminal)
The
enforcement of court decisions is regarded as a continuing problem. Complete
statistics on the effective enforcement are not always available, but some
partial information is already telling: at court levels, there were more than
800.000 civil enforcement cases and more than 80.000 administrative enforcement
cases in 2014. The recent modification of the Code of Civil Procedures on
coercive enforcement will significantly reduce the civil enforcement cases in
court.
The
Strategy for the Development of the Judiciary includes an objective to improve
the organisation and functioning of bailiffs in order to improve effective enforcement
of court decisions, but there is not yet any action or deadline for this
objective.
In
terms of enforcements of criminal decisions, the only statistics available are
the confiscation of criminal assets, but there is no overview available on the
recovery of damages by the State or private parties. ARO reports an improvement
of assets confiscation by the Fiscal Administration (ANAF) from 5% in 2013 to
15% in 2014[63]
of seized assets.
              1.4.6  Integrity within
the judiciary
Corruption cases against the magistracy
Integrity
within the judiciary is a particularly important test of the management of the
magistracy. In 2014, DNA reported an increase in the number of corruption cases
against judges and prosecutors.[64]
There has been an increase in the number of persons coming forward as
whistle-blowers, and the DNA regard this as an illustration of increased
confidence that signals would be acted upon. This year, DNA indicted 23 judges
(including 4 from the HCCJ), 6 Chief prosecutors and 6 prosecutors for corruption
within the judiciary.[65]
7 judges and 13 prosecutors were convicted of corruption. Many of these cases
are high-profile and significant cases. Examples include 4 judges prosecuted
for bribery in a case involving an influential businessman and press magnate,
and a Chief Prosecutor is prosecuted for traffic of influence in a case where
the prejudice involved is €60m.
The
SCM is responsible for ensuring that there are no obstacles to the criminal
investigation of magistrates. It has espoused a policy of "zero
tolerance" against corruption within the judiciary and this has become a
consistent feature in the SCM's public statements. It decided in July 2014 that
judges who have committed offences in office, which may constitute a criminal
offence, may not benefit from immunity in the criminal proceedings; that judges
subject for criminal investigations for corruption offences should abstain from
rendering solutions in similar cases until the moment his/her situation is
clarified; and that the principles of impartiality and independence cannot be a
justification for hiding a behaviour that constitutes a threat to independence
and impartiality, as is the case for corruption.[66] In
2014, the SCM approved the pre-trial detention of 4 judges and 5 prosecutors,
and suspended from office 14 judges and 6 prosecutors. 
The
“Law limiting special pensions for magistrates convicted of corruption” came
into force on 14 July 2014. This provides that magistrates convicted of
corruption will not receive the special pension normally enjoyed by the
profession.
Disciplinary action
The
SCM is responsible for sanctioning professional misconduct and disciplinary
offences of magistrates, notably bad behaviour, incompetence and serious
negligence. 
The
investigation of such cases rests with the Judicial Inspection. The number of
disciplinary actions has increased in 2014. In total the judicial inspection
initiated 36 disciplinary actions (27 judges, and 10 prosecutors), against 28
in 2013. This is the result of additional personnel, internal efforts to speed
up investigations and a change of the law extending the scope of investigations
to inadequate use of language by a judge in court and to obstruction of
inspection activity. The number of complaints has actually decreased in 2014. [67]
The
reports of the Judicial Inspection are forwarded to the respective SCM
sections. The decisions of the SCM can be appealed before the HCCJ, where
special panels are chaired by the President or the Vice-President of the High
Court. The chain of decisions seems to have become more predictable and
consistent: in comparison to 2013, the SCM reports much less variations between
SCM decisions and HCCJ appeals. [68],[69]
              1.4.7  Judicial
Inspection
The
Judicial Inspection's role goes beyond its disciplinary functions. It also has
a key role in reform and modernisation more generally. In 2014, it moved into
new offices and reinforced its organisation, filling vacant posts and setting
up autonomous departments. The SCM has also supported its work with new IT
investment and a specialised module for the inspection as part of ECRIS.
However, the need for the inspectors to travel for long periods throughout the
country still puts a strain on resources. 
The
Judicial Inspection has been able to reduce the deadlines for investigating
notification for defending the independence of justice or the professional
reputation of magistrates to 15 days instead of 45, in spite of an increase in
cases 2014 (see above). 
The
horizontal verification activities in 2014 focused on substantive controls on
the whole activity of the courts and thematic controls. The results lead to
horizontal recommendations, and can also trigger individual investigations and
sanctions of magistrates. The themes chosen by the Judicial inspection cover
key themes in the current efforts to modernise the magistracy, including the
time lag between registration of a complaint and the first hearings in court
for cases under the Civil Procedural Code; managerial duties in terms of
planning, organizing, coordinating, control and communication; extended
confiscation; monitoring of
cases older than 10 years;
monitoring of high level corruption cases; controls where the statute of
limitation has expired, and public procurement cases.
The
themes for 2015 have been chosen together with the main judicial institutions
and specific consultation mechanisms are in place this year. The Judicial
Inspection has also published its first bulletin to make their work better
known within the judicial system and to the outside world.
              1.4.8  Accessibility,
transparency, “user-friendliness” for professionals and justice users;
Several
opinion polls conducted by the Romanian authorities have shown an increased
public trust in the judiciary in Romania,[70]
in particular in the institutions pursuing high-level corruption. Part of this
is linked to the interface which lawyers, businessmen, NGOs, and citizens face
in their dealings with courts. Accessible information, clear deadlines, help
when arriving at a court building, the treatment of parties during court
appearances and access to files are all areas which have been identified for
action and improvement.  
In
October, the SCM launched the Guidelines for court users under the new civil
and criminal codes. The Guidelines are meant to be a useful instrument for the
court users and should help to avoid some procedural sanctions such as the
annulment of a complaint because it does not fulfil the formal requirements.
Furthermore the guidelines may streamline the judicial proceedings, by avoiding
the delays caused by the necessity to comply with the requirements of the
complaints. 
The
Minister of Justice has pursued the “judges in school” project with the
Minister of Education.
2.           Integrity framework and
the National Integrity Agency
Romania has a clear framework for
integrity amongst public officials, and an independent institution to help the
application of these rules and apply sanctions which can be challenged in
court. An important aspect of this work is seeking to ensure that conflicts of
interest can be avoided in the first place. 
During the reporting period, the
National Integrity Agency (ANI) has continued to process a high number of cases
(638 cases were notified to ANI and 541 started ex-officio. ANI has finalised
514 reports in 2014). However, ANI remained subject to pressure and the
implementation of its reports, even when confirmed by court decision, has
continued to be questioned. ANI continued to initiate a substantial number of
cases in terms of conflicts of interest and incompatibility issues, many of
them concerning senior politicians and well known public figures.[71]
Despite the fact that 90% of ANI's decisions on incompatibilities and conflicts
of interests have been confirmed by the HCCJ[72]
and that the Constitutional Court has also confirmed ANI's conclusions on
issues such as the concept of "same public office" for sanctions of
ineligibility or the constitutionality of rules on incompatibilities, ANI's
decisions are still often subject to public criticism. 
2.1.        The National Integrity
Agency and the National Integrity Council
2.1.1.     Institutional capacity
ANI's staffing and budget was
stable in 2014, after increases in the past years.[73]
The budget for 2015 has also been approved. 
Cooperation with other
institutions seems to have consolidated in 2014. Cooperation with institutions
like the DNA and the security services is characterised as good, and improving
with the police – though most notifications passed on to ANI come from private
citizens. The General Prosecution is an area identified as having the potential
for more cooperation, including pursuing potential offenses in the area of false
declarations. The process of passing through the Wealth Investigation
Commissions, which had in the past on occasion been cumbersome, seems to have
normalised, with no particular difficulties to report.[74]

2.1.2.     National
Integrity Council (NIC)
The National Integrity
Council provides political oversight for ANI. In 2014, as well as monitoring
the management of ANI, it intervened on several occasions to protect the
independence of the Agency and defend its personnel against outside pressure. A
concrete example of such pressure was the call for the resignation of ANI's
President after a decision, validated by the HCCJ, on the incompatibility of a
candidate to the European Parliament's elections.[75] The
NIC issued a statement in defence of ANI.[76]
The NIC also cleared ANI's President following media speculation.
The NIC's role also
implies intervening proactively in Parliament in support of ANI. An example
took place in May 2014 when the Senate opened a debate on ANI's annual report,
with the NIC taking ANI's defence in Parliament.[77]
Another important role of the NIC is to defend ANI's budget in the context of
parliamentary debates.
The current NIC's
mandate expired in November 2014. The process for appointing a new NIC was
subject to a number of controversies, including the nomination (in a first
phase) of candidates who were themselves subject to ANI or DNA proceedings. The
process does not seem to have allowed for a proper discussion of the integrity
of the candidates put forward. A new procedure will be held in Spring 2015.
2.1.3.     Track record – conflict of
interest, unjustified wealth, incompatibility
In 2014, ANI's track record
showed a stable trend in ANI's activity compared to 2013:
-         
294
cases of incompatibilities;
-         
101
cases of administrative conflicts of interests;
-         
60
cases of criminal conflicts of interests;
-         
30
cases of significant differences between incomes and assets;
-         
29
cases of solid suspicions on committing criminal offences or corruption
offences.
The 514 cases include 6
magistrates, 3 State Secretary/Secretary general, 14 County council's
counsellors, 11 senators, 28 deputies, 60 vice mayors, 84 mayors, 1 County
council president, 22 special public officials, 36 public officials and 100
persons with management or control position. The number of cases of unjustified
wealth doubled in 2014 compared to 2013 (from 15 to 30). The Agency also
communicates on its activity by publishing on its Internet Webpage press
releases informing the public about definitive and irrevocable decisions.[78]
A high percentage of ANI
decisions are challenged in court (70%) but the confirmation rate of ANI
decisions in court is above 90%. The instance responsible for first instance or
appeals is the Administrative Section of the HCCJ, and in 2014, it made
significant efforts to reduce the delays for hearing these cases, despite its high
workload overall. The HCCJ plays a key role in setting jurisprudence in
incompatibility cases, all the more so given examples this year of
contradictory decisions from different courts. Quicker decisions and a coherent
jurisprudence should result in swifter enforcement of incompatibility decisions
and may also increase public acceptance. 
A practical solution for dealing with
conflict of interest cases was also found at prosecution level. With the new
codes, the lower courts - Tribunalele - became competent for these cases.
Prosecutors in the appeal courts, who had developed experience in these cases,
were requested to take cases over from the lower courts, to promote continuity
and maintain expertise. In 2014, at prosecution level, 350 conflict of interest
files were solved, a court of law being notified in 36 cases.[79] 
A challenge faced by the Agency
is the implementation of definitive court decisions regarding unjustified
assets or conflict of interests and incompatibilities. The follow-up of these
court decisions seems to be far from automatic. In this context, ANI has set up
a process to monitor the implementation of its definitive reports (i.e., those
which have not been challenged) and of final court decisions.[80] Final
decisions are communicated to competent authorities for appropriate follow up,
such as assets confiscation, removal from public offices or the application of
other types of sanctions in the case of the persons for whom unjustified
assets, incompatibilities or conflicts of interests have been established. 
In cases where authorities or
institutions refuse or unduly delay the application of decisions and sanctions
such as removal from office of persons in cases of incompatibilities or conflict
of interests, the Agency applies contravention fines.[81] Also,
the Agency has the legal obligation to make all necessary efforts to carry out
the final and irrevocable decisions, including notification of the prosecution
(not applying a final decision is a criminal offence).
Such procedures can be very
lengthy. Parliament provides particular examples where Court decisions have not
been swiftly applied. For example, several months passed before a member of the
Senate resigned from the Parliament, after a final decision delivered by the
HCCJ that had found him to be in a state of incompatibility. The resignation
allowed the Parliament to avoid taking a decision on ANI's request for the
enforcement of the HCCJ decision in his case. Another case concerning a Deputy
also took several months to proceed, before the Chamber of Deputies declared
the position "vacant", implicitly confirming the removal from office
of the Deputy. ANI had to set in train procedures to apply fines to the
relevant parliamentary committees for failure to act. A new case of a Deputy
found incompatible is awaiting decision in the Chamber of Deputies, while court
decisions are pending for about 40 parliamentarians.
2.1.4.     Ex ante checks and
prevention activities
              ANI has been finalising
the public procurement procedure on IT tool "Prevent" for ex-ante
checks of conflict of interest in public procurement. This is seen as an
important step to help prevent conflict of interest in the first place. The
project is on track for implementation in mid-2015, and – in line with CVM
recommendations[82] – will cover all electronic public procurement, not just that
involving EU funds. A budget of 23 million Lei (€5.1m) has been foreseen. ANI
has already experience with electronic declarations of wealth on a database,
with a certificate of excellence on this project.
              A Government Emergency
Ordinance will be issued in March or April 2015, after public debate, to
specify operational and data protection rules for the system. [83] This will be important as the system creates new obligations: Local
authorities will have to react if the "Prevent" system issues a
warning of a potential conflict of interest. If the warning is not followed up,
DLAF or DNA will be automatically notified (and of course the procedure will be
at risk of cancellation).
              The system would cover a
limited number of potential conflicts of interest as defined in the Romanian
legislation, i.e. the existence of kinship to the third grade (parents,
children, siblings), but it could potentially be extended to also cover third
parties, consultants or sub-contractors. According to ANI, a very large share
of situations of conflicts of interest (85 to 90%) in Romania now take place
within the family sphere and consist in concluding contracts awarding public
funds to companies owned by family members of local officials.
"Prevent" will essentially be an administrative tool, but will cover
all contracts within its scope, and not just operate on a sample basis
(contrary to other existing systems). More complex cases of conflicts of
interest that involve criminal qualifications would in any event be subject to
criminal procedures, including for example attempts to conceal relevant
information. 
ANI also invests in other
preventive activities, notably by sending experts to other institutions to
apply integrity systems and participating fully in the National Anti-corruption
Strategy.
2.1.5.     Legal Framework
ANI's core legal framework
remained unchanged in 2014, despite some parliamentarians putting forward
proposed amendments to the rules on incompatibilities. However, the overall
integrity legal framework is also affected by legislation centred on other
public policies. The law on inter-community development associations, the
education law and the health law have all been amended with changes to the
incompatibility provisions. There is no evidence that the implications for
incompatibilities were assessed in advance, and when consultation of ANI did
take place, it was perceived as being only formal.[84] CVM
reports have underlined the desirability of clarity in the legal framework for
integrity, with any uncertainty likely to give rise to litigation, but also the
need for stability and for ANI itself to be fully involved in any legislative
reform. The Ministry of Justice have confirmed these objectives but expressed caution
about any immediate plans to consolidate the integrity framework.
The amendments to the Criminal
Code adopted by Parliament in December 2013, declared unconstitutional by the
Constitutional Court in January 2014, would have diluted the effectiveness of
the integrity framework.[85]
The Parliament has not revived the proposal.
In the course of 2014, there were
two sets of amendments proposed in the Senate on the issue of whether conflict
of interest or incompatibility should apply only to the specific office held at
the moment that the transgression was established. One of these was proposed
whilst CCR consideration of this issue was pending, one when the CCR had
already ruled on the issue, so both appeared to constitute a proposal that
Parliament could override a CCR decision.[86]
The Ministry of Justice has been clear that it opposes both amendments.
2.2.        Integrity and the Romanian
Parliament
Two important issues have been
regularly raised in previous CVM reports concerning the approach of Parliament
to integrity issues.[87]
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, and an
apparent tendency in Parliament not to consider court rulings as automatically
binding, notably those which have upheld decisions of the National Integrity
Agency. In this respect, principles of clarity and automaticity have been regarded
to be core elements which help to avoid subjectivity in parliamentary actions.
Some hopes had been expressed that work on the law on the Statute of Deputies
and Senators and the Code of Conduct of MPs would have addressed this issue.
More broadly, it is also the case that there are no provisions in Parliament to
exclude parliamentarians who have been convicted of criminal offence – so that
a parliamentarian convicted of corruption, but with a suspended sentence, can
continue to sit in Parliament as before.
ANI continues to report problems
with the follow up of its incompatibilities decisions, in particular by the
Parliament, even when those have been confirmed by the HCCJ. For example, a
ruling by the CCR in July 2014 settled the interpretation of the concept of
"same office", but Parliament did not proceed to automatically
suspend the parliamentarian in question. The CCR ruling would have been
expected to have settled the question definitively. Although the specific cases
are now no longer pending (see above), there will be new tests for the
Parliament's actions, as there are over 40 parliamentarians found incompatible
by ANI for whom court decisions are pending. 
Parliamentary and ministerial immunity
with respect to search, arrest and detention 
There had been hopes that new
Statute of Deputies and Senators adopted in July 2013[88]
would have introduced a more systematic and consistent approach, in line with
the principle of equality before the law. However, 2014 continued to be
characterised by delays in the approvals and refusals given to requests from
the prosecution to lift the immunities of MPs. During 2014, DNA prosecutors
requested the Parliament for approval for the pre-trial detention of 8 Deputies
and 1 Senator, who had been charged with corruption offenses:
-         
5
requests were denied (4 by the Chamber of Deputies, 1 by the Senate);
-         
4
requests were admitted by the Chamber of Deputies.
12 requests were also made for
approval to investigate one Minister and 11 former Ministers for corruption
offenses:
-         
2
requests were addressed to the Chamber of Deputies, one was accepted, the other
denied;
-         
2
requests were admitted by the Senate;
-         
7
requests were admitted by the President of Romania;
-         
One
request has been pending since September 2014 at the European Parliament.
CVM reports have also pointed to
the need for motivation of these decisions.[89]
The criteria on which requests are accepted or rejected remain unclear and are
not communicated to the prosecution. 
November 2014 saw a number of pending
requests being granted: the preventive arrest of three members of the Chamber
of Deputies, and two requests for the approval to investigate former ministers
who are also members of the Senate. 
Upon request of the Ministry of
Justice, the General Prosecutor’s Office commented on proposals to speed up and
to increase objectivity in parliamentary procedures on amending article 24 of
the Law no. 96/006 on the Statute of Deputies and Senators and articles 13-15
of the Law no. 115/1999 on ministerial responsibility and the Rules and
Regulations of the two parliamentary chambers.
At the same time, the Draft Law
on amnesty and pardon was rejected by the Chamber of Deputies. When first
adopted by Parliament in December 2013, this was seen as a risk to the pursuit
of corruption crimes, in opening the door to giving an amnesty to those
convicted of such crimes.
3.           Tackling high-level
corruption
Corruption is a deep-seated
societal question with consequences for both governance and the economy. It
remains a major issue in Romania, as evidenced by several perception surveys. According
to a recently published Eurobarometer survey, at least nine out of ten
respondents in Romania said that corruption (91%) was important problems
(stable since 2012).[90]
However, recent CVM reports have also been able to point to a growing track
record in terms of investigating, prosecuting and deciding upon high-level
corruption cases.[91]
3.1.        High Court of Cassation
and Justice (HCCJ)
The High Court's track record on
tackling high-level corruption cases has been maintained throughout 2014, with
a scale of cases for 2014 comparable to 2012 and 2013 figures. Between January
1 and December 31, 2014 the Penal Chamber settled, as first instance, 12
high-level corruption cases and the Panels of 5 judges settled, as final instance,
13 high-level corruption cases. There are also a few cases pending in the panel
of 5 judges, all registered in 2014. Even in cases with a high number of
witnesses and complex evidence, the HCCJ has underlined its efforts to ensure
respect of procedural rights for all parties. Amongst the high
profile defendants convicted were those who had served in the positions of
Prime Minister, Ministers, Members of Parliament, judges and prosecutors.
Amongst
the emblematic cases still pending, a verdict is expected by mid-2015 in a
large case of suspected electoral fraud to the 2012 referendum, with 78
defendants (3 of them having already admitted guilt), and about 550 witnesses
(notably elderly people whose signatures were allegedly forged). Other ongoing
cases handled by the criminal section of the HCCJ relate to Deputies, Senators,
ex-Ministers, MEP and magistrates.[92] 
The
HCCJ has also reported improved cooperation amongst institutions. The entry
into force of the new Criminal Codes was managed without generating problems or
loopholes in ongoing procedures in cases of high level corruption, notably with
the application of the principle of the most favourable law and the possible
implications for prescription periods. The HCCJ is satisfied that these issues
have now been resolved by the CCR.
The
new codes have also introduced a very clear definition of corruption offenses.
Sanctions have been reduced for first offender (following a general trend
introduced by the new codes), but strengthened in case of repeated or cumulated
offences. The general trend of a rather high percentage of suspended sentences
in Romania is less obvious for decisions at the level of the HCCJ's decision,
with some considerable custodial sentences (up to 7 years) having been applied.[93]
Possibilities for appeal have also been limited (only appeal and cassation, no
additional recourses), which is a welcome development. According to the HCCJ,
the overall number of corruption cases reaching the court is increasing. This
trend, also highlighted by other institutions, tends to demonstrate on the one
hand the scale of the problem in Romania, but also on the other hand that more
cases are reported or detected and brought to justice.
A few cases of corruption have
been discovered in the ranks of the HCCJ itself. The HCCJ has measures in place
to try to combat this, including the random allocation of judges to panels.
Judges fearing a potential conflict of interest must file a request for
abstention. 
3.2.        The National
Anti-Corruption Directorate (DNA)
3.2.1.     Legal Framework 
An important change for the
anti-corruption institutions, DNA included, has been the entry into force of
the new criminal codes 1 February 2014. DNA was attentive to the risk that the
new rules would hamper their effectiveness, and raised a number of issues for
proposed amendment (see above).
As
a follow-up to the European Union Court of Justice ruling on the Data Retention
Directive, the CCR considered that the Romanian law did not provide sufficient
guarantees. As a consequence, DNA faced reduced access to data held by
telephone operators. Discussions are ongoing to find the right balance between
criminal investigations and fundamental rights in this case (see above).
Another
important CCR decision came with a ruling that provisions of the Criminal Code
regarding judicial control were non-constitutional, as they did not set time
limits for judicial control measures. To prevent the risk of a legislative vacuum
when the CCR ruling started to be applied, the government introduced an emergency
ordinance modifying the provisions to include time limits (see above).
DNA
has also expressed satisfaction with the change in its scope to exclude prosecution
of less important cases. [94]
3.2.2.     Institutional capacity
DNA has reported good cooperation
with the HCCJ, ANI, SCM, police and the Ministry of Justice. DNA obtained
reinforcement of its investigative capacity with an extra 50 posts for judicial
police, 35 of whom will be devoted to financial investigations inside a new
department was also established to deal with financial investigations, damage
recovery and extended confiscation. This will contribute to the enforcement of
court rulings in cooperation with the fiscal administration. Only a legislative
change would enable DNA to act directly, for example by selling directly frozen
assets.
The Commission visited the
Cluj-Napoca DNA local branch, where a small team (5 prosecutors supported by
specialised police and DNA central office when needed, for example for cases
implying international cooperation, and by the SRI) have nevertheless been able
to establish a substantial track record. Cluj-Napoca DNA local branch have been
involved in cases involving the President of the County Council, a mayor,
politicians, key figures in the field of education (Deputy County Inspector, a
headmaster…) and high profile business figures. 
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.
3.2.3.     Track record 
DNA maintained its track record
on conducting investigations of high level corruption cases throughout 2014.
This is also reflected in an increase in public trust[95] but
also more notifications being received from citizen.[96]
In 2014, DNA registered 4987 new
cases, which is a very sharp increase compared to 2013.[97] 246
cases were sent to trial, regarding 1167 defendants, 47 of these defendants
were indicted with plea bargain agreements. 
Amongst the high profile
defendants, DNA has indicted 8 Members of Parliament, 2 County prefects, 7
presidents of county councils and 21 mayors (from different political parties).
23 judges have been indicted (including four HCCJ judges) as well as 6 Chief
prosecutors and 6 prosecutors (the approval of the SCM is necessary for search
and arrest. It has been granted in all cases). According to DNA, this high
figure reflects not an increase of corruption within the magistracy, but an
improvement in the capacity of DNA to find such cases and in the willingness of
citizens to come forward. Such cases are complex and a new special DNA unit has
been established to deal with them.
During the reference period, 335
final conviction decisions were ruled in corruption cases against 1138
defendants (this is a slight increase compared to 2013)
and 47
final acquittal decisions for 138 defendants, of whom for 7 defendants the
acquittal decisions was ruled following the decriminalisation of the offence
and for 3 defendants the court ruled the application of an administrative fine.
Amongst the high profile defendants convicted were those who had served in the
positions of Prime Minister, Ministers, Members of Parliament, judges, prosecutors
and mayors. DNA has secured convictions in a high proportion of cases (the
acquittal rate is 7.9% for DNA cases).[98]
DNA has paid special attention to
the asset recovery component of each individual case. In order to recover the
damages caused by the offenses for which the cases had been sent to court
during the reference period or to ensure the confiscation by the court of the
illicit proceeds, prosecutors ordered ensuring freezing measures for sums of
money and goods worth around €200 million. Amongst these assets are 416 real
estate properties and 93 cars. In the cases with final conviction decisions
during the reference period, the courts ruled the confiscation of the total sum
of approximately €30 million, as well as of a large number of movable goods.
Compensations ordered to civil parties amounted at €274 million.[99]
4.         Tackling corruption at all levels
4.1       The
extent of corruption 
The
perception that corruption remains a deep-seated problem in Romania is
confirmed not only by opinion polls,[100]
but by experts in the field. For example, prosecutors taking part in the 2014
edition of the National phase of the Anti-corruption competition, which brings
together prosecutors from across the country, made a distinction in attitudes
towards high-level corruption and low level corruption – a phenomenon which was
seen as broadly tolerated by society at large.
Successive
CVM reports have pointed to the need for determined and sustained efforts at
all levels. In the CVM report of January 2014, Romania was invited to step up
efforts in the prosecution of low level corruption, but also upstream, through
implementation of measures related to prevention and education.
On the
side of the prosecution, more priority has been given to corruption. 337 indictments
for corruption offences were drawn up in 2014, for which 956 defendants were
sent to trial. This represents a substantial increase in the number of
defendants – of over 80%. A total of 2416 cases were solved, an increase by 4.55
% compared to the similar period of the last year[101].
Provisional arrest was applied to 103 persons.[102]
There
was also more targeting. In priority domains (complex cases) – such as
defrauding the health, social or education insurance systems – there was an
increase in the number of investigations in relation to offences of passive
corruption (bribe-taking), up from 784 of the cases solved to 1278. The
offences provided by the Law no. 78/2000 – corruption offences or offences
assimilated to corruption, committed by / in connection with public servants
having special qualities under the law, counted 421 cases. Concerning economic
offences,
the value
of the assets from tax evasion[103]
and money laundering[104]
(including the DNA and the DIICOT), for which provisional measures were issued,
amounted to around €96.6 million.
4.2       Corruption
prevention
4.2.1   National Anticorruption
Strategy (NAS)
Under
the National Anticorruption Strategy 2012-2015, the Ministry of Justice
launched the second round of thematic evaluations at central and local level.
Centered on peer review, the concept is based on GRECO and OECD practices. The
2500 institutions which adhere to the NAS commit to observing a set of 13
legally binding preventive measures and to submitting themselves to the peer
review. This has brought some first results on how the preventive measures are
being implemented in practice by public institutions at central and local level
as regards incompatibilities, transparency and codes of ethics, though such
initiatives often face reticence from institutions to be overly critical of
each other.
At local
level, implementation of sectorial plans has identified several good practices
developed by municipalities.[105] In addition, the
Ministry of Justice carries out a regular follow-up regarding the
implementation and improvements, with 2 systems, on-site and self-evaluation.
The follow-up seems to show involvement from the institutions and active
participation.
In
October 2014, the Ministry of Justice organised the Annual Anticorruption
Conference, on “Best practices in preventing corruption, promoting integrity
and transparency”.[106]
Education in the anticorruption area has been included in several Ministries'
specific sectorial plans[107]. The National Integrity
Agency organized 12 training sessions for 326 persons at national level and 20
seminars attended by 400 persons.
A study
is also underway to identify the triggers for corruption. It will be performed
as a joint project between the Bucharest and Amsterdam law schools and is based
on a survey of 250 persons in custody or in the probation service for
corruption offenses. According to DNA, lessons should also be learned from
successful cases to identify corruption patterns and risk areas.
4.2.2    Institutions
As well
as the Ministry of Justice, other key actors in the fight against petty or
lower profile corruption are the general prosecution services and the
Anti-corruption General Directorate (DGA) in the Ministry of Interior Affairs.
Cooperation is of critical importance to the success of the different agencies
dealing with anti-corruption. The DGA has pursued its track record for fighting
corruption within the Ministry of the Interior, but also in support of DNA and
of the General Prosecution. The DGA has a hotline which is available to citizens
free of charge to report corruption offenses, and has proposals to turn this
into a call center and link it to the prosecution.
This
track record lay behind a proposal to extend the DGA's mandate made through a
government emergency ordinance in 2013.[108] This would
have extended the remit of DGA across the public sector. However, this
ordinance was reversed by a law in Parliament. Statistics show that in the 7
months during which DGA enjoyed an extended competence, notifications relating
to possible corruption of public officials in other ministries grew – and
declined again when the decision was reversed. 
At
institutional level, DGA carried out information and training activities with
priorities set for the areas most vulnerable to corruption.[109]
An anti-corruption course "Preventing and countering corruption” was held
jointly with the Institute for Studies and Public Order.[110]
An example of specific action was the distribution of some 300,000 leaflets at
border crossing points. A new Anti-corruption Guide was also launched to mark
International Anti-corruption Day on 9 December. An increase of cases of
corruption being raised by the public suggests greater confidence in
anti-corruption measures. Statistics also show a decrease in the number of
people who admit having been asked to pay a bribe.[111]
Cases are reported in the media, acting as a deterrent. An electronic
application has been set up with EU funds to collect information on risks and
vulnerabilities and identify repetitive patterns (for example, when the
stealing of goods has been reported in an institution, similar institutions
will be subject to an audit).
Under
the National Anti-Corruption Strategy, all Ministry of Interior employees take
part to training activities at least every three years. Integrity tests are
also performed. According to DGA, out of 100 tests performed on traffic police,
3 led to negative results. There are also cases of policemen refusing bribes
and reporting the bribe attempt to DGA – there is also a leniency clause for
policemen reporting corruption before the offense is discovered.[112]
The overall number of cases of corruption amongst border guards and traffic
police is declining after having reached a peak in 2010.
4.2.3    Role
of civil society
Civil
society in Romania continues to play an important role in the fight against
corruption, both by documenting and highlighting the problems and by providing
support and expertise to concrete anti-corruption projects. The DGA implemented
the project "Development of the civil society involvement in drafting,
implementing and assessing anticorruption policies”, co-financed by the
European Commission. This involved a number of NGOs specialized in
anti-corruption and public policies.[113] This
project is seen as a bridge with NGOs, in line with the National
Anti-corruption Strategy.
The
results of the project are presented in an assessment report on the
collaboration between NGOs and public institutions in the field of
anti-corruption and best practices manual on cooperating, with positive
examples in this field developed in Romania, Bulgaria, the Netherlands and
other EU Member States.[114]
Specific examples include:
-      the "bribe
market website" (Piața de șpagă[115])
initiative. This aimed at informing users of the possibility to obtain public
services and/or utilities without paying bribes and gathers information on the
scale of bribes. Based on user reported data, the project estimates that €1
bn/year is paid in small bribes in Romania.
-      the Initiative
for a Clean Justice organised seminars on the key issue of relations between
magistrates and media,[116]
in the context of the publication by SCM of the guidelines between the media
and judiciary.
-      the project
"Combatting fraud in public procurements" organised a series of
seminars, training 122 magistrates, as well as many police officers and
financial investigators. 
-      a public debate
on the Parliament's Code of Conduct, including developing ideas on exactly when
parliamentarians should abstain from voting due to a conflict of interest.
4.2.4    Media
The
media also has an important role in raising awareness about corruption, as well
as identifying specific cases. A project called “The Public procurement files”[117]
was launched in April 2014[118],
to raise awareness of public procurement corruption and to identify the
loopholes used. The results have been used in prosecutions involving prejudice
of several millions euro. It has also brought to light specific practices which
can help to identify or dissuade other cases.[119]

4.3       Investigation
– prosecution and court practice
Low
level corruption is notoriously difficult to measure in a systematic way, and
appreciations tend to rely on summaries by experts looking at the field – for
example, that there are fewer reports of bribes being asked by traffic police,
or that "informal" payments in the field of health and education
remain a major problem. The General Prosecutor has made the fight against
"petty corruption" a priority, including using the tool of asset
forfeiture. He also brought together prosecutors in September in the national
phase in an anticorruption competition to increase awareness and exchange best
practice. 
4.3.1    Prosecution
services throughout the country
According
to Prosecutor General, the entry into force in February 2014 of the new
Criminal Codes limited activity in the first half of the year, but this was
stepped up from the summer. For instance, from July to September, there were 78
cases of petty corruption where 183 defendants were sent to trial. In the same
period, seven cases dealt with conflict of interest, 500 with tax evasion, 126
with money laundering[120]
and 200 with contraband and more than 10 legal persons had been indicted.[121]
The number of low level corruption cases finalised by courts declined in 2014.[122]
It
appears from the cases presented during the national anticorruption competition
in September 2014 that the term of "petty corruption", whilst being
understood in contrast to high level corruption (involving senior officials)
covers very different realities. Sometimes it refers to small amounts of bribe
being asked by low ranking officials, sometimes very substantial amounts of
money linked to elaborated fraud schemes (for example, for the issuance of fake
invalidity certificates on a large scale or fake prescriptions). These
repetitive cases may be particularly suited to ex ante identification through
risk assessment. For example, obligations of assets declaration could cover
sensitive functions (such as in the above mentioned case of issuance of
certificates) currently excluded and be subject to a stricter check against
illicit enrichment. This would also point to a need for more systematic
analysis of corruption patterns linked to audits or inspection in similar
structures.
Measures
to make corruption less straightforward are also an important element. The
General Prosecutor has highlighted the benefits of putting a ceiling on cash
transactions (for example, in one case the proceeds of corruption were used to
buy a number of properties, facilitated by the use of cash). The Ministry of
Finance is considering legislating on this issue.
4.3.2    Confiscation
and asset recovery
As already highlighted in
previous CVM reports, effective confiscation and asset recovery is a key
element in the effective dissuasion of corruption and in illustrating an
effective anti-corruption regime to the public.[123] The recovery rate to
ensure that decisions of the courts with financial consequences accrue to the
public purse still remains very low, around 8% of assets notified by Courts. The prosecution is in
charge of proving the illegal source of an asset,[124]
but the responsibility for the execution of the court orders rests with the
financial institutions. According to the Asset Recovery Office under the
Ministry of Justice (ARO), the 8% figure relates to old files and with the new
legislation on assets forfeiture in place, results will improve. There has also
been an increase of frozen assets in 2014 which should carry through into
recovery. The National Agency of Fiscal Administration (ANAF) also reports a
significant increase of its activity in 2014, with the amount of confiscated
money having doubled. New provisions of the Criminal Codes might provide help.[125]
The problem of final execution of
recovery orders is acknowledged by the institutions involved and there is a
common understanding on the need for legal provisions to make the procedure
more efficient. One of the problems is a shortfall in statistical data,
for example reporting on the execution of sentences implying confiscation,
despite the efforts ARO, essentially a monitoring body. An important
distinction here is the difference between the recovery of damages by the
state and the confiscation of assets found in the course of the criminal
procedure. It still seems that the public authorities responsible for
recovering these damages only rarely pursue the cases. ARO intends to gather
all statistics from all institutions and develop an IT application.
There seems to be a particular
issue with those in charge of the execution of Court decisions, and their
apparent reticence to pursue to the end action to seize and recover the assets
for which an executory title has been issued – in spite of the obvious
implications for public finances. Whilst ANAF has a particular role here, there
are many exceptions (for instance, Romsilva for forest cases). In cases of fraud
affecting the financial interests of the EU, defrauded money has to be refunded
after a financial correction is imposed by the management authority. But this
comes from the state budget, without necessarily being compensated by those
committing the fraud. 
There are also a wide variety of
practical issues to be addressed. For example, whilst seizure of cash is relatively
straightforward, seizure of property or assets like cars is more complicated.
These continue to be used by the indicted persons until there is a court
verdict, which then need to be executed by ANAF. Another problem is that assets
like cars depreciate relatively quickly in value. For perishable goods, a
procedure for pre-emptive conversion into cash is foreseen in the new criminal
code – though with restrictions.[126]
DIICOT has started to use this procedure and will help to train other
prosecutors and judges. DIICOT has also been using new provisions allowing for
the appointment of an interim management for frozen assets.[127]
There are however issues like disposing of property in difficult market
conditions. 
As for extended confiscation, ANAF
intervenes to execute the court rulings or during the trial if extended
confiscation measures have been taken. Even if it exists since 2012, extended
confiscation still remains a relatively rare procedure and measures to increase
awareness and training do not yet seem to have carried through into action.
One of the difficulties
frequently cited has been a proliferation of institutions involved in this
area. In December 2014, the Ministry of Justice approved a memorandum for the
creation of an Agency dedicated to the administration of assets seized in
criminal procedure cases. The Agency will be under the authority of the
Ministry and will manage the activities performed currently by several
different institutions. It is in particular designed to bring a more systematic
approach to handling and valuing the confiscated goods. The new structure
should become operational by end of March 2015, with 30 posts.
Finally, to underline the
political priority of the fight against corruption and asset recovery, as part
of the South-East
European Cooperation Process
Chairmanship in Office, Romania promoted a regional declaration of ministers on
the issue. More generally, on asset recovery, ARO continued to register an
increased level of exchanges of data and information with EU counterparts and
other specialized international networks. Several projects aimed at
disseminating good practices in the area of asset recovery are also implemented
with relevant stakeholders.
4.3.3    Sentencing
The fact
that corruption offences such as bribery are considered part of social reality
is perhaps reflected in the nature of sentences. Custodial sentences for
corruption remain the exception. In 2014, less than 21% of those convicted for
corruption received a custodial sentence (48 out of 225), [128]
70 defendants convicted with conditional suspension (31 %) and 107 defendants
convicted with suspension under supervision (47%). For example, a custodial
sentence was applied to 21 out of 54 convictions for bribe-taking (with a
minimum 1 year sentence, maximum 3 years and 6 months), 12 out of 44 convictions
for bribe-giving (with a minimum 8 months sentence, maximum 5 years), and 8 out
of 57 convictions for trading in influence (with a minimum 1 year and 3 months
sentence, maximum 4 years). [129]
As for the offences of conflict of interests, in 2014, 350 files were solved, a
court of law being notified in 45 cases. 48 defendants were sent to trial,
including 7 deputies, 10 mayors, and one President of county council.
4.4       Tackling
corruption in different sectors 
4.4.1    The
magistracy
As set
out earlier in this report, the SCM continued in 2014 to take measures against
corruption within the judiciary.[130]
It has voiced a more explicit policy of non-tolerance for offences. The work in
this area of the DNA, the HCCJ, and the Judicial Inspection is set out above. 
4.4.2    Healthcare
Corruption
in the health sector appears to be widespread. The practice of informal
payments is still frequent, especially in smaller towns or villages, and
therefore is difficult to eradicate. The Ministry of Health and the
Association for Implementing Democracy in Romania undertook a perception survey
in February 2014.[131]
It reveals that more than two thirds (68%) consider that the level of
corruption in the public health system is high and very high, and one fifth of
people admitted giving informal payments.
In the
area of health, corruption is addressed on two levels: higher level corruption[132]
– in the field of public procurement – and petty corruption in the field of
informal payments for medical services. Projects in both areas have been
pursued in 2014. For tackling the specific problem of public procurement in the
health system, the Ministry of Health has looked at monitoring the spending of
public funds by the public health units through a portal.[133]
In addition, a platform to monitor public procurement and the contracts carried
out by public health units and a portal to monitor the conflicts of interests
is under way. 
Currently,
public procurement is centralized at national level for the main products (equipment,
vaccines etc.). In 2014 six procurements were made and they will generate, over
time, budget savings of 20%, framework agreements being signed during the year.
Another 13 centralized procurements are on-going. Expenses are also monitored
and when deficits are found, they can highlight anomalies. It is intended to
put in place a methodology according to which the hospitals will report the
procurement procedure, to enable to evaluate the performance of contracts.
However, staffing constraints seem to limit the potential of these measures to
effectively detect and prevent corruption. 
As a
first step towards attempting to curb informal payments, a system of feedback
mechanism for patients is now being tested. Ethical Councils in hospitals are
not yet functioning, but a methodology for their operation is now being
developed. They will be tasked with the analysis of patients' report of
possible ethical breaches and deeds of corruption. They will not have the power
to investigate criminal offenses but will be tasked with sending relevant
information to the prosecution. Another element is the issuance of an
electronic health card that will register all consultations and prescription,
which would also help highlight abusive/fake consultations or prescriptions.
Civil society has proposed other elements to curb informal payments,[134]
also noting the issue of remuneration for medical staff in public hospitals.
Cases have also pointed to the need for proactive risk assessment – one case of
repetitive bribe-taking was successfully exposed following a signal from the
public, but the fact that it has led to unexplainable patterns in spending (on
disability payments) had not been picked up.[135]
In
addition, the HCCJ established in December 2014 that any doctor employed in a Health
Minister's unit is considered a public official and is thus punishable
according to the Criminal Code for bribe taking. 
4.4.3    Education
In the
education sector, the main problem has been the corruption related to exams,
especially during the baccalaureate national examination. Cases have included
leaking the content of the examination papers, and turning a blind eye to
cheating. There is an on line portal where persons can introduce complaints and
which guarantees confidentiality. 2014 has seen a decrease in the number of
complaints, and this may be the consequence of using video recording for
examinations, which seems to have been a useful preventive measure.
2014 has
seen a number of convictions for corruption offences in this area, including
personnel with senior management responsibilities within the Ministry of
Education. During the past year, training was provided for the head of
educational institutions and a Code of ethics had been introduced, which would
include forbidding teachers to give after-classes to pupils from their own
classes. An agreement with the
SCM and the Ministry of Justice has allowed for anti-corruption to be added to
the school curriculum.
Another
identified risk area is university level.[136]
Institutions are not required to appoint external assessors when making
decisions in view of conferring degrees, a standard practice in many countries.

4.4.4    Public
procurement
Romania
faces persistent shortcomings in public procurement. Issues identified include
a combination of several factors touching upon the capacity of public
purchasers, the lack of stability and the fragmentation of the legal framework,
the institutional system and the quality of competition in public procurement. A
high percentage of procedures of public procurement are subject to complaints. There
is a general perception of high levels of corruption, fraud and conflict of
interests. Civil society observers have noted major differences in the number
of cases identified and pursued in different parts of the country and by various
agencies; authorities at local level being particularly affected by the lack of
transparency in the allocation of public funds to public procurement projects,
and the risks of corruption in awarding public contracts at the local level being
substantial.[137]
Concerns also exist regarding the capacity and the degree of expertise of staff
dealing with public procurement procedures, at both national and local level.
On one hand, the number of public procurement professionals seems to be insufficient
compared to the workload in this area, leading to inadequate tender documents,
triggering complaints from economic operators and making the evaluation and the
execution of the contracts difficult. The repeated use of exceptions affects
the transparency and openness of the market and creates the potential for corruption.
According to the national public procurement agency ANRMAP, it is impossible to
assess all the technical specifications (which can be a way to manipulate
contracts) as there are too many of them. On the other hand, the remuneration
of public procurement officers is very low in comparison to the value and
complexity of the contracts they are supposed to process or to verify. Wages
for staff dealing with European funds are planned to be increased, as from 1
January 2015.[138]
The
existence of manuals, guidelines and other tools of good practice seem to be
becoming more widespread in administrative bodies and training is given to the
personnel dealing with public procurement files, including by NGOs. In
addition, the system for ex ante checks being developed by the National
Integrity Agency ("Prevent") should help to prevent and detect better
particular types of transgressions such as conflicts of interests. On the
remedies side, the National Council for Solving Complaints (CNSC) receives
complaints on public procurement. It acts as an efficient filter in preventing
a substantial number of irregularities in public procurement procedures, both
in the case of national and of European funded projects. In case of suspicion
of fraud, CNSC may refer the cases to the prosecution. However, problems remain with
overlapping responsibilities (e.g. in the field of ex-ante control),
insufficient inter-institutional cooperation, and checks and balances leading
to inconsistent interpretation of legislation and conflicting decisions of the
public procurement authorities. It remains difficult to cancel contracts that have
been concluded despite a conflict of interest, especially if they were already
(partially) executed. 
The
definition of conflicts of interest in Romanian law will also have to be
updated with the transposition of the new EU Directive on Public Procurement,
which has a broader definition (not limited to family and business relations),
leading to a necessary fine-tuning of existing preventive measures. In
cooperation with European Commission services, Romania has recently started to
develop an overarching public procurement strategy and action plan which should
be delivered by end June 2015. The related actions and measures should be
implemented by the end of 2016.
From the
prosecution side, public procurement was identified as a major risk factor in
an exercise of local strategies to fight corruption that were elaborated for
prosecution units. As part of its specialised trainings, the Public Ministry
has conducted an analysis of judicial practice in the matter of public
procurement as regards offences investigated by non-specialised prosecutor’s
offices. This analysis was distributed to prosecutor offices as a best practice
model for establishing certain legal qualifications in cases under
investigation.
4.4.5    Management
of EU funds
From the
complaints related to public procurement in Romania, almost 40% of the
complaints are about public procurement contracts financed by EU funds, as
stated the latest report of the CNSC. The share of EU funded projects involved
reflects their very high share in public investment and hence in tendering
procedures.
At a
local and regional level, according to the Cluj-Napoca DNA branch, frauds
related to large projects benefiting from EU funds rarely concern the entirety
of the project, but parts of it. As an example approximately 20 to 30 serious
cases are discovered each year only in this region.
[1] Previous
CVM reports can be consulted at: http://ec.europa.eu/cvm/progress_reports_en.htm

[2] The Commission has a CVM resident adviser in Bucharest.
[3] http://www.ccr.ro/files/products/Decizie_002_2014.pdf
[4] COM (2014) 37 final 
[5] http://www.ccr.ro/files/products/Decizie_80_2014.pdf
[6] ART. 276 Placing pressures on justice: The act of an individual
who, during an ongoing legal proceeding, makes false public statements
regarding the perpetration, by the judge or by the criminal prosecution
authorities, of an offense or of a serious disciplinary violation related to
the investigation of the cause in question, in order to influence or
intimidate, shall be punishable by no less than 3 months and no more than 1
year of imprisonment or by a fine.
[7] http://www.ccr.ro/files/statements/Comunicat_presa_4_noiembrie_2014.pdf
[8] http://www.ccr.ro/files/products/Decizie_265_20141.pdf
[9] http://www.ccr.ro/files/products/Decizie_641_2014.pdf
[10] As a result of this ruling, one Senator resigned and one Deputy's
mandate was terminated in November 2014 (see below). http://www.ccr.ro/files/products/Decizie_418_2014.pdf
[11]Article 87 para. (1) f) of the Law no.161 / 2003
 http://www.ccr.ro/files/statements/Comunicat_presa_16_decembrie.pdf
[12] ANI has established 114 such cases of incompatibility of mayors or
deputy mayors, most of which are still pending before courts.
[13] For example, setting deadlines for judicial control.
[14] For example, Decision of 2013 concerning Senator Mora. 
[15] The Romanian government had previously made a commitment that any
amendments would be looked at by the Venice Commission (COM(2014) 37 final)) 
[16] Venice Commission Opinion no 732/24.03.2014. The 2014 CVM report
pointed to the risks of political interference in the appointments of
prosecutors. (COM(2014) 37 final))
[17] On the 8th of May 2014 the Senate hosted a conference regarding the
Constancy of Law and Revision of the Romanian Constitution, in the context of
celebrating 150 years since the creation of the Romanian Senate.
[18] COM (2014) 37 final; COM (2013) 47 final; COM
(2012) 410 final
[19] COM(2012) 410 final
[20] In May, the NIC intervened to defend ANI when senators sought to use
the activity report of ANI to raise criticisms which seemed to go beyond the
scope of the report. In June, the NIC published another press release in
defence of the ANI, following statements on television channels.
[21] This is presented as a legally binding instrument annexed to the
law on the Statute of Deputies and Senators.
[22] COM(2014) 37 final
[23] The Report was published in June 2014:  http://www.encj.eu/images/stories/pdf/workinggroups/independence/encj_report_independence_accountability_adopted_version_sept_2014.pdf
[24] To compare this with practices in one Member State: in the
Netherlands, if there is an incorrect media coverage of a delicate judicial
topic that could damage the judiciary, the Council for the Judiciary often
reacts the same day, using television, Twitter etc. There is a pool of experienced
spokesmen and well trained media judges, as well as a media strategy.
[25] The SCM reported that the NAC did not follow up cases in a
systematic way.
[26] COM (2014) 37 final; COM (2013) 47 final; COM
(2012) 410 final
[27] This was the source of controversy in respect of appointments to
senior posts in the prosecution in 2012-13.
[28] Venice Commission, European standards as regards the independence
of the judicial system – Part II: The prosecution service,  http://www.venice.coe.int/webforms/documents/CDL-AD(2010)040.aspx 

[29]  ANI: April 2016, DNA and General Prosecutor: May 2016, HCCJ: September
2016, SCM: elections in 2016
[30] However, some concerns have been expressed that he budget for the
NSC means that they are not in a position to maintain the level of training for
the planned increase in clerk posts.
[31] In total the budget allotted for the entry into force of the codes
amounts to 56,7 Million Lei, about 54% higher than initially approved in the
beginning of 2013.
[32] www.mpublic.ro; The General Prosecutor
received 260 questions. 
[33] An example was that, when faced with the CCR ruling on time limits
for judicial control measures, the HCCJ decided to apply time limits from the
old Criminal Code until the entry into force of new laws. 
[34] In Scoppola v Italy (2010) 51 E.H.R.R. 12, the European Court of
Human Rights, reversed its earlier approach and held that the principle is part
of Article 7 of the Convention. The principle is well known in Romania, being
referred to in Article 15(1) of the Constitution. Articles 5(1) and 6(1) of the
new Criminal Code introduce it into Romanian criminal law.
[35] This case aimed to determine whether the statute of limitation in
criminal liability is an autonomous institution or not in relation with the
institution of punishment.
[36] This stated that the provisions of art. 5 of the Criminal Code are
constitutional as the provisions of successive criminal laws are not mixed in
the process of establishing and applying the more favourable criminal law.
[37] Decision no. 5/2014 of the High Court of Cassation and Justice
published in the Official Journal no. 470/26.06.2014
[38] Draft law for approving the Government Emergency ordinance no.
3/2014. Examples of amendments relate to ensuring judicial certainty for the
composition of certain panels, specifying the criminal offences to be investigated
by DIICOT as a result of a broader definition of the organised group,
clarifying the provisions on the competences of the prosecutor, and on the
possibility to challenge preventive measures.
[39] Draft law for amending and completing the Law no. 135/2010  on the
Criminal Procedure Code, as well as for completing the Law no. 187/2012 on the
application of the Law no. 286/2009  on the Criminal Code
[40] As noted in previous CVM reports, this is an unusual provision,
though there is a parallel in Italy.
[41] Transparency International, Timed Out. Statutes of Limitation and
Prosecuting Corruption in EU countries, 2011
[42] Venice Commission, European standards as regards the independence
of the judicial system – Part II: The prosecution service, 
http://www.venice.coe.int/webforms/documents/CDL-AD(2010)040.aspx
[43] Article 339(4) of the Criminal Procedure Code includes a procedure
for complaints against resolutions from prosecutors to close a case or drop
charges.
[44] Articles XII, XIII,XVIII, XIX,  of Law no.2 of 1st of February
2013.                                                                                                                                          
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       
[45] An interesting example (Question 28) concerned whether a doctor is
a public servant with respect to the provisions of the criminal law, in
particular whether a doctor can be party of a corruption situation of bribe
taking. The HCCJ ruling confirmed that a doctor is a public servant and holds a
public office and therefore should not be excluded of the category of active
subjects in bribe taking.
[46] In 2011 there were 33; in 2012, 19; and in 2013, 21.
[47] http://www.scj.ro/jurisprudenta.asp
[48] COM (2014) 37 final; COM (2012) 416 final.
[49] The national module of the N-Lex legislation portal was launched on
12 November 2014 and is accessible from the home page on the official web site
of the MoJ: http://legislatie.just.ro/. The data base offers free access of
citizens to the Romanian legislation after 1989 in a user friendly format. The
date base includes a search engine and it shall be updated daily.
[50] http://www.mdrt.ro/userfiles/strategie_adm_publica.pdf
[51] COM (2014) 37 final; COM (2012) 416 final; COM
(2013) 47 final
[52] COM (2014) 37 final; COM (2012) 416 final; COM
(2013) 47 final
[53] Under a GEO of June 2014
[54] COM(2012) 416 final, p.18
[55] Annual Growth Survey 2015 (COM(2014) 902 final), p.14 
[56] The Strategy for the development of the judiciary 2015-2020 was
approved by Government Decision no. 1155/23.12.2014.
[57] The strategy is based among other background elements on: Judicial
Functional Review; CVM Reports and EC recommendations; Study on Court
Optimization; Inputs from MoJ specialized departments, Superior Council of
Magistracy, Public Ministry, High Court of Cassation and Justice, National
Trade Office, National Administration of Penitentiaries.
[58] Including:
7 projects financed through European Commission financing specific programs:
„Criminal Justice”, „Civil Justice” and „Prevention and fight against crime”,
with a total amount of funds of: 3.144.307, 52 euro; 1 project financed from
structural funds (in the framework of PODCA 2007-2013): ” Implementation of 
N-Lex portal” (October 2012 –  February 2015) (Value of the contract:
20.443.694 lei). €20m were received through the Norwegian Financial
Mechanism 2009-2014 (€3m as national co-financing. 
[59] In 2014, there were 1979 plea bargain resolutions notified to
courts for the entire Public Ministry, involving 2235 defendants and 5 legal
persons.
[60]  Law no. 138/2014 for amending and
completing the Law no. 134/2010 on the Civil Procedure Code, as well as for
amending and completing some related normative acts.
[61] The
indicators are: Clearance
rate; Stock of files (older than 1 year/1 year and a half); Percentage of cases
closed within 1 year; Average term for solving cases, on different
field/matters of law at the level of each court countrywide (only for the first
instance stage of the case and not for the case of the courts of appeal),
Drafting decisions exceeding the legal deadlines.
[62] In partnership with Arges Tribunal.
[63] This is the percentage of the value of confiscated assets by ANAF
with regard to the value of assets seized by courts. Note that the seized
amount should also cover damages, and therefore the actual confiscation rate
may be higher.
[64] See Section 3.2.3
[65] Comparison with 2013: 13 judges and 12 prosecutors were sent to
trial; 5 judges and 5 prosecutors were convicted for corruption.
[66] Decision 846 bis/3 July 2014
[67] 5779 complaints in 2014, 6058 complaints in 2013.
[68] The SCM registered 28 actions against judges, rejecting 8, applying
14 sanctions (from 8 warnings to 2 suspensions from office). There were 8
appeals to the HCCJ with 5 rejected, 4 accepted (in one of these cases, the
HCCJ imposed a higher penalty, exclusion from office). There was a similar
pattern in the 13 cases registered against prosecutors.
[69] In the UK, the courts would have an approach of not interfering
with the sanctions imposed by professional disciplinary bodies (which are best
fitted to assess the seriousness of professional misconduct), taking the view
that sanctions are not primarily directed to punishment, but to maintenance of
public confidence in the trustworthiness of all members of the profession. Bolton
v Law Society, Court of Appeal [1994] 1 W.LR. 512
[70] For example Barometrul "Inscop — Adevărul despre
România" conducted by Inscop Research.
[71] 70% of 2014 incompatibility cases concern elected officials:  Deputies
(27), Senators (11), County Council Presidents (1), County Counsellors (11),
Local Counsellors (54), Mayors (47), Deputy Mayors (54); the incompatibility
cases of mayors and deputy mayors cover all the political spectrum.  65% of
2014 administrative conflicts of interest cases concern elected officials:
Deputies (1), Local Counsellors (26), County Counsellors (2), Mayors (34), Deputy
Mayors (4).
[72]
However, one high-profile case illustrated a problem that some issues may not
reach the HCCJ. One of the candidates in the May 2014 EP elections had been
subject to an incompatibility decision. His eligibility to run was challenged
by ANI, but the Court of Appeal ruled that he could run (although the issue in
question was the question of the "same office", on which the HCCJ had
already ruled). The Court of Appeal did not refer the case to the HCCJ, so
there was no mechanism for the High Court to restore its own interpretation of
this question. 
[73] The budget in 2014 was of 19.390.000 Lei (approx.4.308.800 EUR).
[74] 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.
[75] This case concerning a former MP and candidate to the European
Parliament elections has led to different interpretations of the laws on
incompatibilities between the Parliament (restrictive interpretation that only
the same office as the one targeted in an incompatibility decision has to be
given up) and the HCCJ (non-eligibility for all offices). The electoral bureau
eventually decided to let the candidate run for the EP elections, and this
decision was confirmed at Court of Appeal level. Subsequently, in July 2014,
the CCR confirmed the interpretation of the HCCJ -
http://www.ccr.ro/files/products/Decizie_418_2014.pdf
[76] http://www.integritate.eu/Comunicate.aspx?Action=1&Year=2014&Month=4&NewsId=1566&M=NewsV2&PID=20
[77] http://www.integritate.eu/Comunicate.aspx?Action=1&Year=2014&Month=5&NewsId=1578&currentPage=3&M=NewsV2&PID=20
[78] http://www.integritate.eu
[79] 38 defendants were sent to trial, including 7 deputies, 10 mayors,
1 president of county council, 1 local councillor, 2 physicians, 1 manager of
bank unit, and 2 officials working for city halls.
[80] This is based on a reporting and monitoring module within the
Informatics System of Integrated Management of Assets and Interests Disclosure
(S.I.M.I.D.A.I.).
[81] For example, ANI fined members of a city council until they
eventually applied an ANI decision concerning one of their peers and removed
him from office.
[82] COM (2014) 37 final, p.14.
[83] Concretely, 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 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.
[84] ANI reports that some amendments that were adopted without
consultation of ANI have affected files pending before the courts.
[85] COM(2014) 37 final 
[86] In the second case, one of the parliamentarians supporting the
amendment was also a government Minister.
[87] COM(2014) 37 final
[88] 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,
[89] COM(2014) 37 final and COM(2013) 47 final
[90] Flash Eurobarometer 406. This finding is also corroborated by the
2014 Transparency International Corruption perception Index: http://www.transparency.org/cpi2014/results
[91] COM (2012) 410 final; COM (2013) 47 final, COM (2014) 37 final.
[92] Including a former SCM judge indicted for abuse of office and a
former judge of the HCCJ criminal section indicted for divulging matters of national
security.
[93] The overall figures provided by Romanian authorities are that 32%
of sentences relating to cases brought by DNA are with detention. The rate is 20%
for corruption cases handled by the Public Ministry. The rest are suspended
sentences. 
[94] SWD(2014) 37 final, p.30.
[95] 55.8% of citizen trust, according to DNA.
[96] According to DNA, 32% of notifications come from citizen and 17%
are ex-officio cases, including information received from SRI.
[97] 3793 cases between January and November 2013.
[98] For the general prosecution the acquittal rate for corruption cases
is 4.8%.
[99] However, collection of sanctions generally remains a problem in
Romania – see below.
[100] See above
[101] Throughout the similar period of the year 2013, 240 indictments
were issued in relation to 451 defendants. In the same period of the year 2012,
211 indictments were issued in relation to 367 defendants.
[102] The defendants sent to trial for corruption offences included: 58
members of medical staff and pharmacists, 17 teachers, 7 mayors, 2 vice-mayors,
6 local counsellors, 36 local/judicial police agents, 11 border police agents,
4 ISU SMURD (Inspectorate for Emergency Situations - Mobile Emergency Service
for Resuscitation and Extrication) workers, 1 bailiff, 2 labour inspectors, 7
public servants releasing driving licenses, 1 APIA (Payments and Intervention
Agency for Agriculture) civil service clerk, 1 ITP (Periodical Technical
Inspection) technical inspector, 4 penitentiary public servants, 2 ANAF
(National Agency for Fiscal Administration) servants, 1 ranger, 70 other public
servants, 3 legal persons, others.
[103] In 2014, 1492 indictments were issued in cases dealing with
offences of tax evasion (1447 indictments drawn up in 2013), with 1826
defendants sent to trial. The actual prejudice recovered amounts to
approximately €136 million (up from €113 million over the same period in 2013).
[104] In 2014, 74 indictments were issued in cases dealing with offences
of money laundering, by which 499 defendants were sent to trial (424 natural
persons and 75 legal persons), a rising trend compared to last year (261
defendants sent to trial in 2013 in 59 cases).
[105] 30 assessment reports have been completed, focussing on
incompatibilities, conflicts of interest, asset declarations, transparency and
ethical codes. Issues touched on include the identification of sensitive
functions or to the definition of the profile and of the mandate of integrity
advisers.
[106] The general aim of the conference was to increase the knowledge and
visibility of the measures to prevent corruption. Specific issues covered included
corruption in public procurement and in the management of public funds,
awareness campaigns, and increasing transparency by public open data. The event
was attended by representatives of all public institutions involved in NAS
implementation, Parliament, Government, judiciary, as well as partners from the
business sector and civil society. 
[107] Ministry of Foreign Affairs, Ministry of
National Defense, Fight against Fraud Department (FAFD), Court of Accounts, Ministry of Regional
Development and Public Administration, Minister of National Education. As an
example, the Ministry of National Education held training
sessions on ethical norms and norms of conduct which in the end involved over
10,000 staff. 
[108] Governmental Emergency Ordinance no.
59/12.06.2013
[109] Examples of groups identified were police units responsible for
Criminal Investigations; those in charge of Detainment Centres and Preventive
Arrest; Civil Emergencies units; personnel from hired from external sources;
and personnel within the Bucharest public order and traffic police.
[110] This focused on how to identify the possibilities to prevent,
discover and sanction corruption deeds, training of target groups; and morality
and ethics in preventing and countering corruption. 
[111]http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/organized-crime-and-human-trafficking/corruption/anti-corruption-report/docs/2014_acr_romania_factsheet_en.pdf
[112] There have been 23 case of guilt admission declaration since 1
February 2014.
[113] Expert Forum, Freedom House, Pro-Democracy
Association, the Center for Independent Journalism, the Institute for Public
Policies and the Association for Implementing Democracy, as well as
anti-corruption experts from the Center for the Study of Democracy (Bulgaria)
and Saxion University (the Netherlands).
[114] http://www.mai-dga.ro/downloads/SSPA/EN_Asessment%20Report.pdf

http://www.mai-dga.ro/downloads/SSPA/EN_Best%20Practices%20Manual.pdf

[115] www.piatadespaga.ro ;
Given that perception of corruption is quite high in Romania, but hard data
concerning the exact price of bribes is almost non-existent, the project draws
on the previous experience in India (ipaidabribe.com) and Europe
(bribespot.com), adding an innovative element regarding competition among
prices and satisfaction regarding quality of service. 
[116] http://www.freedomhouse.ro/index.php/stiri/evenimente/item/332-procurorii-si-presa

[117] http://www.hotnews.ro/achizitii_stiri

[118] The platform was launched as part of the project “Fighting Public
Procurement Criminality. An Operational Approach”, coordinated by Freedom House
Romania Foundation, with important institutional partners in Romania, France
and Germany.
[119] Other websites which cover corruption issues in detail are http://anticoruptie.hotnews.ro/
and www.romaniacurata.ro
[120] The value of the assets for which provisional measures were taken
in cases dealing with offences of money laundering amounts to approx. 95
million euros, a rising trend compared to the same period of the year 2013,
when seizures in amount of approx. 40 million euros were ordered.
[121] A field visit to the prosecution in Cluj-Napoca
in September gave an example of the variety of cases being handled, with cases
of corruption concerning bribes under 10.000€ and fraud to public procurement
up to 200.000€. Other cases were reallocated to DNA, as well as those
concerning high level officials. Many corruption cases related to the education
and health sectors, but two major cases involved the head of Cluj police and
his deputy.
[122] According to the data centralized by the
Public Ministry, in the period 1 January 2014 – 31 October 2014, 120 decisions
– concerning 186 persons – in the matter of corruption offences stayed final. 
In the same period of the year 2013, 158 decisions stayed final, with regard to
218 persons.
[123] COM(2012) 410 final
[124] The Romanian Constitution includes a presumption of legitimate
ownership, so the burden of proof is on the prosecution
[125] New provisions allowing for the sale of assets if any Court verdict
within a year has not been used so far; DIICOT used provision of the Criminal
Code allowing for the appointment of a manager for frozen assets.
[126] For cars, there is a need to wait for a depreciation of 40% or a
period of one year before being able to sell, except if the owner agrees.
[127] For example, one hotel in Bacău to be managed until a ruling
on an organised crime case decides whether it will be confiscated
[128] In the same period of the previous year, the percentage of the
convictions with execution was almost identical (17 %). The fact that a
comparable proportion of suspended sentences for an offence like burglary, for
example, is 50%, could suggest that judges continue to view corruption with
more leniency than other crimes.
[129] Figures for maximum sentences were also broadly comparable in 2013
(4 years for bribe-taking, 3 years 4 months for bribe-giving, 6 years for
trading in influence). 
[130] Decisions for approving preventive measures for corruption offences
during 2014 (solicitations for custody for 7 judges and 6 prosecutors; for preventive
arrest for 13 judges and 7 prosecutors; for preventive domiciliary arrest for 9
judges and 8 prosecutors) and suspension from office have been decided (5
judges and 6 prosecutors due to preventive arrest; 13 judges and 2 prosecutors
due to arraignment).
[131] http://www.aid-romania.org/comunicat-de-presa-2/

[132] As regards higher level corruption, the
Ministry of Health identified three priority areas: 1) monitoring the spending
of public funds in public hospitals – identifying risk areas; 2) proposal to
monitor public procurement - identifying risk areas in public procurement; 3)
proposal to monitor the risks for conflicts of interests for the management
positions in the health system.
[133] Spending was monitored for 2 years and controls and verifications
were carried out by the Ministry of Finance.
[134] http://www.romaniacurata.ro/bolnavi-dar-corupti/?utm_source=newsletter&utm_content=Newsletter-157542-20141206&utm_campaign=B%C4%83g%C4%83m+medicii+%C8%99i+bolnavii+%C3%AEn+pu%C8%99c%C4%83rie+sau+facem+ceva%3F

[135] A physician employed as a medical inspector
at the Ministry of Social affairs had taken bribes to give false certificates
of disability. The average bribe amounted to around €50. In this case more than
€960,000 was recovered from his home.
[136] One involved a university professor who had, in return for cash
payments, awarded highs marks to degree theses which he has actually written
himself using material plagiarised from the dissertations of students in
previous years.
[137] This is corroborated by the risk analysis for
fighting corruption at local level conducted by the prosecution,  showing that
corruption cases at local level relating to public procurement concern mostly mayors,
but also  deputy mayors, local counselors, and others working for public
administration.
[138] http://legestart.ro/cresc-salariile-persoanelor-care-lucreaza-pe-fonduri-structurale-ce-modificari-aduce-legea-nr-702014/
.