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, accession to the European Union, conflict of interest, cooperation policy, corruption, judicial reform, prevention of delinquency, rule of law













EUR-Lex - 52015DC0035 - EN











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52015DC0035

REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL On Progress in Romania under the Co-operation and Verification Mechanism /* COM/2015/035 final */









1.         INTRODUCTION

The Cooperation and Verification
Mechanism (CVM) was set up at the accession of Romania to the European Union in
2007.[1] It
was agreed that further work was needed in key areas to address shortcomings in
judicial reform and, the fight against corruption. Since then CVM reports have
charted the progress made by Romania and have sought to help focus the efforts
of the Romanian authorities through specific recommendations. 
The CVM has
played an important role in the consolidation of the rule of law in Romania as a key facet of European integration. Monitoring and cooperating with
the work of the Romanian authorities to promote reform has had a concrete
impact on the pace and scale of reform. The Commission's conclusions and the
methodology of the CVM have consistently enjoyed the strong support of the
Council,[2]
as well as benefiting from cooperation and input from many Member States. 
This report summarises the steps taken
over the past year and provides recommendations for the next steps. It is the
result of a careful process of analysis by the Commission, drawing on inputs
from the Romanian authorities, civil society and other stakeholders. The
Commission was able to draw on the specific support of experts from the
magistracy in other Member States to offer a practitioner's point of view. The
quality of information provided by the Romanian authorities has improved
substantially over time – itself an interesting reflection of progress in
management of the reform process.
The 2014 CVM report noted progress in
many areas, and highlighted the track record of the key anti-corruption
institutions as an important step towards demonstrating sustainability. At the
same time, it noted that political attacks on the fundamentals of reform showed
that there was no consensus to pursue the objectives of the CVM. This report returns
to both trends to assess the extent to which reform has taken root. 
The importance of the CVM has been borne
out by opinion polling of Romanians themselves. A Eurobarometer taken in the
autumn of 2014 showed a strong consensus in Romanian society that judicial
reform and the fight against corruption were important problems for Romania. The results also showed a substantial increase in those who see an improvement in
recent years, and some confidence that this will continue. There is clear
support for an EU role in addressing these issues, and for EU action to
continue until Romania had reached a standard comparable to other Member
States.[3]

Consistency in
track record is one of the key ways to demonstrate sustainability in progress
towards the CVM objectives, one of the conditions to show that a mechanism like
the CVM would no longer be required. The Commission has paid particular
attention to this aspect in its monitoring this year. Building strong and
durable institutions is an important consideration in the targeting of EU funds
to support the CVM objectives, including by effective prioritisation of
Cohesion Policy under the thematic objective for enhancing institutional
capacity and efficiency of public authorities. With more consistent ownership
and effective prioritisation, Romania can work together with EU partners[4] to
maintain a momentum in reform over the coming year. 
2.         STATE
OF PLAY OF THE REFORM PROCESS IN ROMANIA
2.1.
     Judicial independence
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.[5]
In 2014, there were no appointments required of judges or prosecutors at the
highest level. An important test case is coming now with the nomination of a
new Chief Prosecutor for the Directorate for Investigation of Organised Crime
and Terrorism (DIICOT), following the resignation of the Chief Prosecutor in
November.[6]
The procedure includes a strong political element in terms of the role it gives
to the Minister of Justice.[7]
The Superior Council of the Magistracy (SCM) is working on an amendment to the
law to change this, and to align appointment of prosecutors on the procedures
used for judges, in line with the guidance of the European Commission for
Democracy through Law of the Council of Europe (Venice Commission):[8]
if this were to be pursued, the next step would be for the government to
propose this to Parliament. 2015 provides an important opportunity for Romania to fully commit to transparent and merit based nominations, in time for a number of
important appointment procedures for senior positions in the judiciary expected
in 2016.[9]
Respect for
judges and the judicial process
Previous CVM
reports have noted the prevalence of politically motivated attacks targeting
judges and prosecutors in the media.[10]
Whilst not reaching the scale of attacks of previous years (2012 in
particular), this issue remained a problem in 2014, often linked to corruption
cases involving influential public figures. Examples reported by the SCM included
cases where the media had reported demonstrable untruths or accused magistrates
(or their families) of corruption. There were also cases where the Constitutional Court received some strong criticism from certain public figures.[11]
One of the roles
of the SCM is to guarantee the independence of the judiciary. Since 2012, the
SCM has a procedure in place, involving the Judicial Inspection, for defending
the independence of justice and the professional reputation, independence and
impartiality of magistrates. The number of requests to the SCM to trigger this
procedure increased in 2014, compared to 2013 – though this could be attributed
to the greater credibility of the system, rather than an increase in problems. Despite
this increase, the Judicial Inspection was able to reduce the time needed for investigations,
allowing the SCM to react faster to the attacks, even within one or two days.
This offered a more effective rebuttal.
Whilst recognising
the benefits of the procedure set up by the SCM, NGOs and representatives of
magistrates' organisations have noted the difficulty in securing an equivalent
coverage of SCM statements, as compared to the original accusation. There have
been calls for the National Audiovisual Council to play a more active role in
sanctioning the media for breaches in professional ethics. More proactively,
steps have been taken by the judicial authorities to improve the information available
to the media on developments in the justice system.[12] 
It remains the
case that there seem to be no agreed lines to define where political actions
interfere with the judiciary and judicial decisions, still less sanctions for
exceeding these limits. 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".[13] Such
provisions are not included in the Code (see repeated recommendation below).
The Constitutional Court and respect for court decisions
The
Constitutional Court (CCR) has been instrumental in supporting the balance of
powers and respect for fundamental rights in Romania, as well as resolving
issues which the judicial process had not resolved. After the entry into force
of the new Criminal Code and Code of Criminal Procedures, CCR rulings solved
major stumbling blocks. Another important example concerned the law on incompatibility,
resolving an issue which had been causing inconsistency in court judgements.[14]
Some
of the CCR rulings have been challenging for the justice system, requiring
adaptations to working methods. Others have required urgent amendment of the
laws. The reaction of the judicial authorities and the Ministry of Justice has respected
the required deadline. However, there are clear examples where Parliament has
not immediately followed up on Constitutional Court rulings relevant to
legislation or the rights and obligations of parliamentarians.[15]
As
for respect for court decisions more generally, there seems to be an increasing
acknowledgement and willingness from the justice system to take action to ensure
that court decisions are followed up. But important problems remain,[16] and businesses
and NGOs have pointed to non-respect of decisions by public authorities, who
might be expected to set an example. 
Constitution
Discussions on a
revision of the Constitution were taken forward at the start of 2014, with draft
amendments being presented in February 2014. Many of them were ruled
unconstitutional by the Constitutional Court and several serious problems were
flagged by the Venice Commission.[17]
If work resumes, this would be an opportunity for a fresh look at how the
Constitution could be used to cement judicial independence.
The process of revision
of the Constitution is relevant for the CVM as some amendments touch on justice
and the functioning of the Superior Council of Magistracy. The stop-start
process so far has been criticised for lacking in transparency, both in the
timeframe and the consultation process. The involvement of the Venice
Commission has however helped to focus the process, and the full participation
of key institutions like the SCM would help to give confidence that any
amendments would give full regard to the independence of the Judiciary. 
Past CVM reports
have touched on the recourse to Government Emergency Ordinances (GEO) as part
of the legislative system within which laws on judicial reform and corruption
have to be taken forward.[18]
Two difficulties have been identified, including in discussions with the CCR.
One is the frequent use of GEO, which limits the opportunities for consultation
and has led to a lack of legislative clarity – with consequences for the
unification of jurisprudence and practice.[19]
The second is the opportunity to challenge GEO. 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. The current Ombudsman, elected in April with the support of only one
party[20],
has expressed the view that the Ombudsman should not get involved in questions
that concern the balance of powers between state authorities and focus
essentially on individual rights issues. Whilst it is understandable that the Ombudsman
has a margin of appreciation as to when to use his power to seize at an early
stage the CCR on the constitutionality of emergency ordinances, this
self-limitation effectively creates a gap, which in the current institutional
setup of Romania cannot be filled by other actors.[21] 
2.2.
Judicial reform[22]
New
Codes
Previous
CVM reports underlined the importance of the new legal Codes to the
modernisation of the Romanian judicial system.[23]
The implementation of the new Criminal and Criminal Procedures Codes in
February 2014 was a major undertaking, and a test of the ability of the
judicial system to adapt. The change was successfully achieved, with the key
institutions working together to good effect: the Ministry of Justice, the High
Court of Cassation and Justice (HCCJ), the SCM, the prosecution and the National
Institute for the Magistracy (NIM). The Romanian magistracy proved able to
adapt to the new codes without an interruption in its work. Some innovatory measures,
such as a possibility for plea bargains, seem to have already been used to good
effect. 
Some
complicated transitional issues did appear. In a number of cases, such as the
application of the principle of the most favourable law, solutions were found. For
some issues, the government adopted changes through emergency ordinances. For
other issues, legislative proposals were made, but parliamentary procedures are
still outstanding. Further adaptations will also be needed following rulings of
the CCR. For example, the Court ruled in December that some provisions of the
Codes regarding judicial control and the preliminary chambers were non-constitutional.[24] On
judicial control, the Ministry of Justice acted to ensure continuity within the
accepted time limit. On preliminary chambers, the HCCJ and the SCM immediately
started working on practical solutions to allow for the presence of defence
lawyers.
A
further practical challenge will come with the entry into force of deferred
provisions of the civil codes in 2016. However, there is evidence that the
civil codes have succeeded in some of their objectives, notably with the
decline in the length of trials (about one year and six months on the average).
A similar evaluation of the impact of the criminal codes in expected in
February 2015. 
Strategy
for the Development of the Judiciary 2015-2020
The
Strategy for the Development of the Judiciary for the years 2015-2020 put
forward by the Ministry of Justice was approved by the government on 23
December 2014. This document draws heavily on CVM recommendations, as well as
on studies developed with the World Bank, in particular the Functional
Analysis of the Romanian judiciary.[25] [26]
Drawing on a series of underlying principles based on the rule of law, the
strategy defines objectives for further reform in the period 2015-2020 to make
the justice more efficient and accountable and to increase its quality.  The
strategy and its action plan should also be the basis for defining the
priorities for EU funding in the area of justice. The approval process for the
document was slow, with a first draft already ready in September 2013.
Consultation took place in autumn and the Strategy and its action plan should
be finalised by April 2015. 
Experience
suggests that such a strategy benefits from wide ownership and involvement by
the key actors. However, the SCM seems to have been working primarily on various
projects in parallel.
Budget
and human resources
Despite
the pressures on public finances, the Minister of Justice secured
considerable increases in funding to facilitate reform. In 2014 the budget
increased by 4% and the planned budget of 2015 includes another increase. This
has helped to fund new positions in courts and prosecution offices, including 200
new auxiliary positions in courts and prosecutor offices. 
The
National School of Clerks, the National Institute of Magistracy and the SCM
organised training and the competitions for the new posts, and the vacancies
were filled in rapidly. Future needs identified include more court clerks,
modernizing IT equipment and renovating court buildings, as well as supporting key
institutions, such as the Judicial Inspection and the National School of Clerks.
EU funding is expected to play a major role in supporting specific projects
linked to reform.
Judicial
efficiency
Workload
is a recurrent problem within the judiciary. This has an impact on the quality
of the judicial decisions and the user-friendliness of the judicial system. The
Ministry of Justice and the SCM have put forward a number of legislative
proposals to address the workload issue. One law (swiftly adopted by Parliament
in October 2014) addressed duplication in the enforcement of court decisions, and
is estimated to have relieved civil courts of about 300 000 cases. It has
proved more difficult to find a consensus on closing small courts, and a law to
give more freedom in dividing the roles of judges and court clerks seems to
have stalled. Imaginative solutions, like peripatetic courts or breaking the
parallelism between courts and prosecution offices, have been suggested as a
way forward.
In
May the SCM created a working group to define how to measure, analyse and improve
the performance of all courts. This seems a valuable step in terms of providing
the tools to manage the performance of the justice system, notably in the
context of the overall justice strategy. It could usefully include measurement
of how the justice system has followed up to ensure the enforcement of their
decisions. 
The
SCM continues to sanction professional misconduct and disciplinary offences of
magistrates. The Judicial Inspection has now established itself as the key body
to investigate disciplinary offences. The number of disciplinary actions
increased in 2014 in comparison to 2013, and decision making has been swifter.
Several
opinion polls have shown an increased public trust in the judiciary in Romania, in particular in the institutions pursuing high-level corruption.[27] This
is an important recognition of progress, but with this comes increased expectations.
Lawyers, businessmen, and NGOs still report difficulties in their relationships
with the courts.
Consistency
of jurisprudence
Another
essential element of judicial reform is the consistency of jurisprudence. The
HCCJ has further developed its use of preliminary rulings and appeal in the
interest of the law to unify jurisprudence. It has also pursued measures to improve
the dissemination of court judgements. Similar practical steps have been seen
in the prosecution and in the judicial leadership more widely. Thematic
inspections conducted by the Judicial Inspection also contribute to consistent
practice. 
Despite
these efforts, a number of obstacles remain to consistency. The accountability
of the magistracy if they decide to diverge from established practice or
case-law still does not seem clear: the SCM had to make clear that the
independence of the judiciary cannot be an excuse for non-unitary practice.
There is also a responsibility on public administration to accept judgements
reached on repetitive issues. This would limit the number of court cases and
strengthen legal certainty by avoiding divergent decisions on identical issues.
There
has been progress on the publication of court decisions. The Ministry of Justice
finalised a project (financed through EU funds) of a portal consolidating
existing legislation.[28]
The HCCJ has an impressive website. The SCM has also signed a partnership to
organise the publication of case law, to start in August 2015. 
2.3.
Integrity
The
National Integrity Agency and the National Integrity Council 
The
National Integrity Agency (ANI) has continued to process a strong flow of cases
in 2014.[29]
A high percentage (70%) of ANI's decisions on incompatibilities and conflicts
of interests are challenged in court, but about 90% of these cases have been
confirmed by the courts. ANI's interpretations of the law have been confirmed
in both the CCR and the HCCJ. It can therefore be seen as acting on a sound
legal footing. In 2014, the HCCJ also helped by finding ways to accelerate incompatibility
cases, despite other calls on its workload. This has helped to deliver
certainty and to improve the dissuasive effect of the integrity laws. 
However,
whilst the borderline between judicial independence and inconsistency is a
sensitive area, there were several examples this year of contradictory
decisions from different courts (even at the appeal court level) providing
different interpretations. This included interpretations which differed from
the HCCJ itself.[30]

The
follow up of ANI's decisions is perceived to be improving. However, there are
still cases where a lack of implementation has forced ANI to send the file to
the prosecution (not applying a final decision is a criminal offence) or issue fines.[31] This seems
to imply a low level of public understanding of incompatibility rules as a
means to prevent conflicts of interest. This is illustrated by the high number
of elected officials who are found to be incompatible.[32] As
the jurisprudence strengthens the recognition that incompatibility decisions
must be enforced, other measures could also be used to ensure that the rules
are well known.
From
a staffing and budget point of view, the situation of ANI has been stable in
2014. ANI has secured the resources to undertake an important new project in
2015. The "Prevent" IT system for ex-ante check of conflicts of
interests in public procurement will be fully finalised in mid-2015 and should bring major benefits in avoiding conflict of
interest in the first place. The system will cover procurement both with EU and
national funds. The necessary implementing law should be adopted in Spring 2015,
after consultation.
The
National Integrity Council (NIC) has continued to fulfil its role as an
oversight body, notably by intervening publicly as well as in front of the
Parliament when required.[33]
The current NIC's mandate expired in November 2014. The initial 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
proceedings, casting doubts on the full commitment of authorities to support
the integrity institutions and suggesting that the goal of integrity is not
well understood.
The
integrity framework: Parliament
The
stability of the legal framework on integrity has remained a problematic issue.
There have been attempts in Parliament to modify elements of the legal framework.
Although none of these passed into law, there was no evidence that the
implications for incompatibilities or corruption risks were assessed in
advance, and consultation with ANI did not take place.[34] A
particular issue concerns rules on incompatibilities affecting locally elected
authorities, such as mayors, given their key role in public procurement. Whilst
it is notable that there was no repeat of the Parliamentary vote of December
2013,[35]
there remains a strong sense that there is no consensus in Parliament in favour
of strong integrity laws.
A
previous plan to codify all rules on integrity – which would have helped to
improve their coherence and clarity – has been put on hold, the reason being
concern that the legislative process would water down existing rules. This is a
lost opportunity to remove any risk of ambiguity in the rules. It will also be
important to cement in legislation the CCR rulings of 2014 confirming the
constitutionality of provisions on incompatibilities.[36] 
The
follow up of ANI's decisions (when confirmed in court) by the Parliament
remains inconsistent, in spite of hopes that reforms would bring greater
automaticity. In one emblematic case, a solution was only found after the
resignation of the Senator. In another case, the Chamber took many months to
take a decision, in spite of arguments that the rules now made respect for a
final court ruling to be automatic.[37]
A new case of a Deputy who has been found incompatible is awaiting decision in
the Parliament. 
2.4
The fight against corruption
Tackling
high-level corruption 
Recent
CVM reports[38]
have been able to point to a growing track record in terms of effectively fighting
high-level corruption cases, a trend which has been confirmed in 2014.  This is
the case both at prosecution level by the DNA[39]
and at the trial stage by the HCCJ.[40]
This is also a confirmation that there remains a major problem.[41] [42]
DNA
activity in 2014 covered a wide range of high-level cases, in all strands of
public offices and involving public figures in a variety of political parties. Indictments
and ongoing investigations included serving and former Ministers,
parliamentarians, mayors, judges and senior prosecutors.  
HCCJ
cases included final instance convictions of a former Prime Minister, former
Ministers, Members of Parliament, mayors and magistrates. There have also been
other important cases, involving influential business figures, concluded at
Court of Appeal level. However, it remains the case that the majority of
sentences are suspended in corruption cases (although this is less marked at
the level of the HCCJ).
For
most of 2014, DNA had little success in persuading Parliament to accede to requests
from DNA for the lifting of immunity of Members of Parliament to allow for the
opening of investigation and the application of preventive detention measures.
This trend appears to have changed in late 2014, when the Parliament lifted the
immunity of several parliamentarians investigated by DNA in a large corruption
case. Parliament's response to DNA requests seems arbitrary and lacking objective
criteria. In contrast, all requests sent to the President of Romania for
lifting of immunities of Ministers were accepted.[43] There
have however been no clear rules established to follow up the CVM
recommendation to ensure swift application of the Constitutional rules on
suspension of Ministers on indictment and to suspend
parliamentarians subject to negative integrity rulings or corruption
convictions.[44] The fact that Ministers continue
in office after indictment on criminal charges, and  parliamentarians with
final convictions for corruption to stay in office, raises broader issues about
the attitudes towards corruption in the Romanian political world.
The
rejection of the amnesty law by the Parliament in November 2014 gave a positive
signal in terms of opposing a law which would effectively result in exonerating
individuals sentenced for corruption crimes. Nonetheless, the fact that only a
week after this vote, the idea of a new draft law on collective amnesty was
again floated in Parliament suggests that the debate has not been closed. 
The
increase of activity also concerns cases of corruption within the magistracy,
recognised as a particularly corrosive form of corruption.[45]
According to DNA, this high figure does not reflect an increase of corruption
within the magistracy (although the scale of the phenomenon constitutes a cause
of concern), but rather an increase in the number of signals from the public.[46] Such
cases are complex and a new special DNA unit has been established with this
remit.
Tackling
corruption at all levels
In
recent years, CVM reports have found it difficult to identify a track record in
tackling cases of corruption in society at large. However, 2014 saw some signs
of progress. The Public Ministry has taken a number of concrete steps to
improve the results of the prosecution in this area.[47] The Anti-Corruption
General Directorate (DGA), both in support of the prosecution (DNA and general
prosecution) and as an internal anti-corruption body within the Ministry of the
Interior, has continued to play a significant role – though plans to extend its
competence to other Ministries seem to have been blocked. However,
the number of court decisions on corruption cases has decreased in 2014, and
the fact that 80% of convicted persons receive a suspended sentence remains a
high proportion.
The
National Anticorruption Strategy 2012-2015[48]
has evolved into an important framework for the public administration. The
second round of evaluation, based on peer review, took place in 2014 at the
level of local public administrations. The concept is based on GRECO and OECD
practices. Institutions which are part of the NAS commit to observing a set of
13 legally binding preventive measures and submit themselves to peer review. This
work is also supported by concrete preventive projects run by NGOs with the
support of EU funds (notably in the Ministry of Health and in the Ministry of
Regional Development). Whilst this work remains piecemeal and has to work hard
to take root in administrations struggling with limited resources, there are a
number of tangible success stories.  
Risk
assessment and internal controls are key areas for action. Some recent cases
have shown substantial bribery cases which might have been identified earlier
by careful scrutiny of the records, but which had to rely on a signal by a
member of the public.[49]
At a time of pressure on public spending, targeting of high-value areas of both
tax and spending would be expected. Lessons might also be learnt in terms of
who has to make declarations of assets, and how these are controlled.  
Concerning
asset recovery, and in particular the recovery of damages, the Romanian
authorities have acknowledged that the system needs to be improved. Though one
of the problems in this area is the need to improve data-gathering, the recovery
rate secured by the National Agency for Fiscal Administration (ANAF) in the
execution of court decisions is estimated at only 5-15% of the assets subject
to a court order. This makes the sanctions less dissuasive, as well as perpetuating
the loss to the victim (often the state in corruption cases) and providing
another example of failure to implement court decisions. The decision by the
Ministry of Justice to establish a new Agency to deal with management of seized
assets is an opportunity to improve the situation. 
Public
procurement procedures, especially at local level, remain exposed to corruption
and conflicts of interests – a fact widely acknowledged by Romanian integrity
and law enforcement authorities. This has had consequences for the absorption
of EU funds. However, it is also true that there are many other factors here –
including the administrative capacity of public purchasers, the lack of
stability and fragmentation of the legal framework, and the quality of competition
in public procurement. Renewed structured dialogue between the Commission and Romania in the context of the implementation of the new public procurement directives, and
of ex-ante conditionality for European Structural and Investment Funds should help
to identify shortcomings, including risk areas for corruption and conflict of
interest. The ex-ante check of public
procurement designed by the National Integrity Agency seems to be a step in the
right direction but would need to be accompanied by other actions to minimise
the scope for conflict of interests, favouritism, fraud and corruption in
public procurement.
3.
CONCLUSION AND RECOMMENDATIONS
The
Commission's 2014 CVM report was able to highlight a number of areas of
progress, some of which showed a resilience which indicated signs of
sustainability. This trend has continued over the past year. The action taken
by the key judicial and integrity institutions to address high-level corruption
has maintained an impressive momentum, and has carried through into increased
confidence amongst Romanians about the judiciary in general, and the
anti-corruption prosecution in particular. This trend has been supported by an
increased professionalism in the judicial system as a whole, including a
willingness to defend the independence of the judiciary in a more consistent
way and a more proactive approach towards consistency of jurisprudence. There
is now an opportunity to test out this progress at moments of particular
sensitivity, notably as concerns senior appointments.
At
the same time, there remains a strong sense that progress needs to be
consolidated and to be further secured. Whilst the implementation of the Codes
has shown the government and judiciary working together in a productive and
pragmatic way, one year on, many legislative issues remain outstanding. There
continues to be a surprising degree of inconsistency in some court decisions,
which will always give rise to concern. Decisions in Parliament on whether to
allow the prosecution to treat parliamentarians like other citizens still seem
to lack objective criteria and a reliable timetable. Parliament has also
provided examples of reluctance to apply final court or Constitutional Court
decisions, also a more widespread problem. And whilst the recognition that
general corruption needs to be tackled is certainly building inside government,
the scale of the problem will need a more systematic approach.
The
Commission welcomes the constructive cooperation it has had with the Romanian
authorities over the past year. The consensus for reform, and the confidence
that progress is taking root, are on an upward trend, which now needs to be
maintained. The Commission looks forward to continuing to work closely with Romania to secure the CVM's objectives. 
The
Commission invites Romania to take action in the following area:
1. Judicial independence 
·       
Ensure
that the nomination of the new chief prosecutor of DIICOT takes place in
accordance with a transparent and merit based procedure;
·       
Conduct
a global review of appointment processes for senior positions in the
magistracy, with a view to having clear and thorough procedures in place by
December 2015, taking inspiration from the procedures used to appoint the
President of the HCCJ;
·       
Ensure
that the Code of Conduct for parliamentarians include clear provisions so that
parliamentarians and the parliamentary process respect the independence of the
judiciary;
·        
In
discussions on the Constitution, maintain judicial independence and its role in
checks and balances at the heart of the debate.
2.
Judicial reform
·       
Finalise
the necessary adjustments to the criminal codes as soon as possible, in
consultation with the SCM, the HCCJ and the Prosecution. The goal should then
be to secure a stable framework which does not need successive amendments;
·       
Prepare
an operational action plan to implement the judicial reform strategy, with
clear deadlines and with the ownership of both the Ministry of Justice and the
SCM, and with all key stakeholders having had the chance to have an input. Equip
the judicial management with stronger information tools on the functioning of
the justice system (such as statistical tools, case management, user surveys
and staff surveys) for better informed decision making and to help demonstrate
progress;
·       
Explore
pragmatic solutions to maintain access to courts without keeping the current
judicial map of small courts;
·        
Improve
the follow-up of court judgments at all levels to ensure that rulings and
financial penalties are properly implemented.
3.
Integrity
·       
Look
again at how to ensure that court decisions requiring the suspension from
office of parliamentarians are automatically applied by Parliament;
·       
Implement
the ex-ante check of conflict of interests in public procurement by ANI. Ensure
closer contact between the prosecution and ANI so that potential offences
linked to ANI cases are followed up;
·        
Explore
ways to improve public acceptance and effective implementation of
incompatibility rules and prevention of incompatibility.
4.
Fight against corruption
·       
Improve
the collection of statistics on effective asset recovery and ensure that the
new Agency can improve the management of frozen assets and work together with
ANAF to improve effective recovery rates. Other parts of the public
administration should be clearly accountable for failure to pursue these issues;
·       
Step
up both preventive and repressive actions against conflict of interests,
favouritism, fraud and corruption in public procurement as well as giving
particular attention to key areas, such as the judiciary;
·       
Use
the National Anti-Corruption Strategy to better identify corruption-risk areas
and design educative and preventive measures, with the support of NGOs and
taking advantage of the opportunities presented by EU funds.
·        
Continue
to improve the fight against low level corruption, both through prevention and
dissuasive sanctions.
[1]               Conclusions
of the Council of Ministers, 17 October 2006 (13339/06); Commission Decision
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, 13 December 2006 (C (2006) 6569 final)
[2]               http://ec.europa.eu/cvm/key_documents_en.htm
[3]               Flash
Eurobarometer 406
[4]               Some
Member States provide technical assistance to Romania in CVM-relevant areas.
[5]               COM (2014) 37
final; COM (2013) 47 final; COM (2012) 410 final
[6]               The
resigning Chief Prosecutor of DIICOT is indicted for corruption for deeds
preceding her nomination in 2013. In January 2013, the Commission expressed
concerns about the ongoing process and recommended that Romania ensures that the new leadership in the prosecution is chosen from a sufficient
range of high quality candidates, who meet the criteria of professional
expertise and integrity, after an open and transparent process.  COM(2013) 47
final, p7.
[7]               This
was the source of controversy in respect of appointments to the senior posts of
the prosecution in 2012-13.
[8]               European
standards as regards the independence of the judicial system from the Venice
Commission point to the importance of avoiding too great a role for political
figures in appointments to the prosecution.   
[9]               General
Prosecutor and Chief Prosecutor of the DNA: May 2016, President of the High
Court of Cassation and Justice: September 2016, Superior Council of Magistracy:
elections in 2016. The President and Vice-President of the National Integrity
Agency will also be appointed in April 2016.
[10]             COM(2013) 47 final, p.4;
COM(2014) 37 final p.3.
[11]             For
example after the ruling on data retention laws. 
[12]             Technical
report section 1.1.2.        
[13]             See
notably COM(2014) 37 final, p. 13. 
[14]             Technical
report section 1.1.1
[15]             For
example in the area of incompatibility decisions, there is still reluctance
from some institutions, including the Parliament, in applying final decisions
against their members. See below, in the Integrity section, and in the
technical report.
[16]             See below
with respect to confiscation.
[17]             The fact
that Romanian authorities involved the Venice Commission as well as the
European Commission in the constitutional reform process is a welcome
development. 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 Venice Commission also called
for a more careful look at the status of prosecutors.
[18]             This has
also been flagged by the Venice Commission.
[19]             More
broadly, the “Strategy for strengthening the public administration” adopted by
the Government in October 2014 should help to improve the quality of
legislation.   
[20]             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.” (COM (2012)410), p.18.
[21]             For
example, the August 2014 GEO on "political parties migration" was
widely considered to raise constitutional issues. The CCR was not seized by the
Ombudsman. The law was subsequently declared unconstitutional upon a referral
by MPs at a later stage of the procedure, by which time it had already come
into force.
[22]             The
importance of judicial reform in Romania is also recognised in the context of
the European Semester, through the Country Specific Recommendations adopted by
the Council in July 2014 for Romania, calling for Romania to improve the
quality and efficiency of the judicial system (2014/C 247/21).
[23]             COM(2014)
37 final
[24]             See
technical report section 1.1.1.
[25]             http://www.just.ro/LinkClick.aspx?fileticket=h7Nit3q0%2FGk%3D&tabid=2880
[26]             The draft
in public consultation is based on: Judicial Functional Review; CVM Reports and
EC recommendations; 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.
[27]             Technical
report section 1.4.8  
[28]             The
database offers free access to Romanian legislation since 1989 in a user friendly
format.
[29]             Technical
Report Section 2.1.3.  638 cases were notified to ANI and 541 started
ex-officio. ANI has finalised 514 reports in 2014. Compared to 2013, there has
been an increase in cases of conflicts of interest and unjustified wealth, and
a decrease of cases of incompatibilities.
[30]             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 HCCJ to restore its own interpretation of this question.
[31]             For
example, ANI had to fine members of a city council until they eventually
applied an ANI decision on conflict of interests concerning one of their peers
and removed him from office. ANI even had to consider taking similar steps
against a Parliamentary committee.
[32]             See
technical report section 2.1. 294 cases of incompatibility were established by
ANI in 2014; 70% concern elected officials. 
[33]             For
example to guarantee ANI's independence in front of the Senate:
http://www.integritate.eu/Comunicate.aspx?Action=1&Year=2014&Month=5&NewsId=1578&currentPage=3&M=NewsV2&PID=20
[34]             For
example the way the legislative proposal amending the Law n° 51/2006 on
community services or public interests was put forward.
[35]             In
particular, 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.
[36]             Notably
on the issue of the "same public office" technical report section
1.1.1
[37]             The decision
was some six months after the CCR ruling, but some 2 years after the HCCJ
ruling.
[38]             COM(2014)
37 final, p. 9.
[39]             Technical
Report Section 3.2.3. In 2014, DNA registered 4987 new cases, which is a very
sharp increase compared to 2013.  246 cases were sent to trial, regarding 1167
defendants, 47 of these defendants were indicted with plea bargain agreements.
[40]             Technical
Report Section 3.1. 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.
[41]             Also
corroborated by perception studies, such as the Flash Eurobarometer 406,
showing that at least nine out of ten respondents in Romania said that
corruption (91%) was an important problem (stable since 2012).
[42]             This is
also recognised in the Country Specific Recommendations addressed to Romania by the Council in 2014 (2014/C 247/21) and in the Anti-Corruption Report (COM(2014)
38 final).
[43]             Ministers,
or ex-Ministers who are not Members of the Parliament at the same time.
[44]             COM(2013)
47 final, p.7.
[45]             In 2014
23 judges (including four HCCJ judges) as well as 6 Chief prosecutors and 6
prosecutors have been indicted for corruption.
[46]             Reflecting
a more general trend of increased public confidence in DNA and judiciary more
widely.
[47]             Technical
Report Section 4.1.
[48]             http://www.just.ro/LinkClick.aspx?fileticket=T3mlRnW1IsY%3D&tabid=2102
[49]             An
example is a bribery case linked to disability payments, where the scale of
disability payments in the locality was out of line with the size of the
population.