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: 2016-01-27
Institutions: European Commission, Secretariat-General
Subjects: Romania, corruption, independence of the judiciary, judge, judicial reform, public prosecutor's department, rule of law

EN 

   EN 

   EUROPEAN COMMISSION  Brussels, 27.1.2016  SWD(2016) 16 final   COMMISSION STAFF WORKING DOCUMENT ROMANIA : Technical Report Accompanying the document REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on Progress in Romania under the Co-operation and Verification mechanism {COM(2016) 41 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 

1 Previous CVM reports can be consulted at: http://ec.europa.eu/cvm/progress_reports_en.htm  

2 

 
 
 
 
 
 
 
                                                            
 
I  

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  follow  developments  in  Romania  through  a  permanent  presence,2  as  well  as  via  contacts 
between the various Commission services and 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  written  questionnaires,  as  well  as  during 
frequent  meetings  with  Commission  services.  The  Commission  also  benefits  from  invaluable 
assistance from independent experts from other Member States in its work and 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.  The information contained in this report 
remains the responsibility of the Commission services. 

The  Commission  also  supports  the  efforts  of  Romania  in  achieving  the  CVM  objectives  through 
funding under the European Structural and Investment Funds. In the 2007-2013 period, Romania has 
implemented a number of projects in the anti-corruption and judicial reform area. The total amount of 
funding from the European Social Fund (ESF) is EUR 16 million. The main beneficiaries have been 
the  Ministries  of  Public  Administration,  Justice,  Education  and  Health.  European  Regional 
Development Funds (ERDF) were invested in actions relating to integrity control projects (including 
PREVENT)3,  capacity  of  public  procurement  agency  for  a  budget  of  about  EUR  15  million.    In  the 
2014-2020 period, the Administrative Capacity Programme (ESF) will provide funding of about EUR 
103 million for judicial reform projects, including 35 million specifically for anti-corruption, and EUR 
35  million  to  support  improvements  in  public  procurement.  ERDF  resources  up  to  EUR  15  million 
will  be  invested  in  capacity  building  and  technical  assistance  in  public  procurement,  in  fraud 
prevention for Management Authorities and in the Fight Against Fraud Department (DLAF). 

II  

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  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, and the transparency and accountability of the judiciary 

2.1 

Judicial independence 

Judicial  independence  is  essential  for  the  rule  of  law  and  the  justice  system  to  work.  The  legal 
guarantees  for  judicial  independence  should  not  only  be  recognised  in  law  but  also  be  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 system, if the work of the prosecution 
is  hindered  or  if  court  decisions  are  ignored.  In  addition,  attacks  on  judicial  institutions  and  on 
individual  judges  and  prosecutors  can  have  direct  negative  effects  on  the  independence  and  the 
impartiality of the judiciary. Political interference in senior appointments is recognised as a key risk 
factor with regard to judicial independence.4 

2   The Commission has a CVM resident adviser in Bucharest. 
3   IT system for ex-ante checks of conflicts of interest (see section 3.3) 
4   The Venice Commission has drawn particular attention to the prosecution in this regard: “It is important that 
the method of selection of the general prosecutor should be such as to gain the confidence of the public and 
the  respect  of  the  judiciary  and  the  legal  profession."  Report  on  European  standards  as  regards  the 
independence of the judicial system – Part II: The prosecution service, CDL-AD(2010)040   

3 

 
 
 
                                                            
This  section  reports  on  the  activity  of  the  main  institutions  playing  a  role  in  consolidating  the 
independence  of  justice  in  Romania.  It  describes  the  extent  of  risk  to  independence  faced  by  the 
Romanian justice system and how the above institutions have reacted. 

Checks and balances at work 

Throughout  2015,  the  judiciary  (represented  by  the  High  Court  of  Cassation  and  Justice  and  the 
Superior Council of the Magistracy) and the Constitutional Court have continued to play a central role 
in judicial independence as institutional actors contributing to the balance of power.  

Increasingly,  this  role  has  been  shown  through  a  public  profile,  notably  through  setting  out  the 
positions of the judicial institutions during parliamentary discussions on relevant legislation. Examples 
where  parliamentary  committees  have  invited  the  judicial  authorities  to  give  their  views  are  the 
discussion on a draft law on the liability of magistrates and the adoption of the draft law creating the 
National  Agency  for  the  administration  of  seized  assets.  However,  in  some  cases  the  judicial 
authorities were asked to give an immediate on-the-spot opinion, which would not have afforded the 
possibility to consult with the bodies they represent.  

The Constitutional Court (CCR) has an important role in the rule of law and in the consolidation of an 
independent  justice  system.  Pursuing  the  work  undertaken  in  2014,5  CCR  rulings  have  sought  to 
provide solutions linked to the balance of powers and respect for fundamental rights that could not be 
solved by the justice system alone. 

The  CCR  ruled  on  a  conflict  between  the  Senate  and  the  judiciary  after  the  Senate  had  refused  the 
request of DNA for preventive arrest of a former Minister and current Senator: 6,7  

 

In  a  first  decision,  the  Court  recognised  a  constitutional  conflict  between  the  Senate  and  the 
judiciary, and ruled that the Senate has an obligation to enact the decision by publishing it in the 
Official  Journal.    Although  the  request  received  79  votes  in  favour  and  69  votes  against,  the 
Senate's quorum had not been  met (i.e.  the agreement of a majority of all Senators was needed 
according  to  Senate's  rules  for  lifting  of  immunity)  and  no  decision  was  formally  noted.8 
Following  the  CCR  ruling,  the  decision  of  the  Senate  was  published  rejecting  the  prosecutor's 
request on the procedural grounds that a quorum for voting was not reached. 

 

In  a  second  decision,  the  CCR  ruled  that  the  decision  of  the  Senate  was  unconstitutional  as  a 
legitimate vote on the substance was required. 9 

In May, following a referral by the President of Romania, the Court annulled a law allowing Mayors 
and County representatives to participate in the Board of Interregional associations pursuing a public 
interest (IDA).10 This law had been the subject of controversy on adoption in 2014.11 The law has been 
however in the end promulgated by the President in December 2015: all legal means to oppose it had 
been  exhausted  (already  sent  back  twice  in  Parliament).  In  the  course  of  2015,  the  CCR  took  19 
decisions  concerning  the  provisions  of  the  new  Criminal  Code  and  Code  of  Criminal  Procedures.  A 
majority of these decisions aimed at reinforcing respect for fair trials and rights of the parties in line 
with ECHR case-law (See Section 2.2.1).  

5 COM(2015) 35 final, p4. 
6 Decizia nr. 261 of  08.04.2015; Decizia nr. 341 of  06.05.2015;  
7 See also section 3.3 
8 Before the Constitutional Court examined the referral, the Senate modified its internal rules and the Statute law 
to  allow  voting  decisions  on  lifting  of  immunities  by  a  majority  of  members  present,  in  line  with 
Constitutional provisions. 

9 The Senate had the choice to accept the March result or re-organise a vote. The latter solution was chosen and 

the Senate refused the arrest of the Senator on 5 June  

10 Decizia nr. 442 of  10.06.2015. The law was annulled on procedural grounds. 
11 COM(2015) 35 final, p9; SWD(2015) 8, p25. The law had been criticised by the National Integrity Agency as 

undermining the integrity framework.  

4 

 
 
                                                            
The decisions of the High Court of Cassation and Justice (HCCJ) on the interpretation of the law also 
play an important role in the institutional checks and balances (See also section 1.3). For example, the 
HCCJ issued two important preliminary rulings on doctors in public hospitals: clarifying that doctors 
employed in public health units are civil servants;  and then that as a result, they cannot receive  any 
supplementary  payments  or  donations  from  patients  (which  is  allowed  in  principle  by  the  law 
establishing  patients'  rights).12  These  decisions  addressed  a  previous  ambiguity  and  provided  a  clear 
ruling to exclude informal supplementary payments, recognised as a major source of corruption in the 
public health system. 

Threats to the independence of the judiciary 

The successful prosecution and conviction of many prominent politicians in Romania is a sign that the 
underlying trend of judicial independence is positive. But as CVM reports have shown, there has also 
been a reaction to this trend: criticism of magistrates and judicial institutions is frequent.13 The risk is 
that such criticism undermines public confidence in the judicial system as a whole, especially when it 
comes  from  government  or  Parliament.14  The  2015  CVM  report  recommended  that:  "the  Code  of 
Conduct  for  parliamentarians  [should]  include  clear  provisions  so  that  parliamentarians  and  the 
parliamentary process respect the independence of the judiciary".15 

This year there has been more requests to defend the independence of justice, following attacks in the 
media and by politicians, including in response to statements from the Speaker of the Senate and the 
Prime Minister.16 The latter included criticism of the judicial system as a whole and of the Heads of 
both  the  National  Anti-Corruption  Directorate  (DNA)  and  the  High  Court  of  Cassation  and  Justice 
(HCCJ).17,18 

An  investigation  is under way  involving  four  members  of  the  Constitutional  Court  (CCR)  regarding 
facts  surrounding  the  Court's  decision  invalidating  the  referendum  to  impeach  the  President  of 
Romania in 2012 (more precisely the issuance by the CCR of an errata clarifying the legal basis for the 
decision).19 The CCR voiced concern that this was a way of putting pressure on the Court, although 
they decided to cooperate with the investigation (citing the need to avoid any disrespect to the HCCJ, 
which  leads  the  procedure).  The  CCR  also  reported  pressures  on  the  court  in  the  context  of  the 
resignation of one judge investigated for corruption.20 

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.  In  2015,  the  SCM  has  taken  16  decisions  defending  the  independence  of  justice  and  10 

12.  Decizia ICCJ nr. 26/2014 and Decizia ICCJ nr. 19 of 4/6/2015 
13   COM(2012) 410 final, COM(2013) 47 final, COM(2014) 37 final, COM(2015) 35 final. 
14   Council  of  Europe  Recommendation  CM/Rec  (2010)12  on  judges:  independence,  efficiency  and 
responsibilities,  §18:  If  commenting  on  the  judges'  decisions,  the  executive  and  legislative  powers  should 
avoid criticism that would undermine the independence of or public confidence in the judiciary. 

15   COM(2015) 35 final, p 13. 
16  http://www.csm1909.ro/csm/linkuri/22_06_2015__74737_ro.docx; 

http://www.csm1909.ro/csm/linkuri/06_10_2015__76356_ro.doc 

  http://www.csm1909.ro/csm/linkuri/22_06_2015__74733_ro.doc; 

17 "The only problem the country has is an obsessed and completely unprofessional prosecutor who is trying to 
make a name for himself by inventing facts and lies from ten years ago” PM Ponta wrote on his Facebook 
page when the charges were brought against him.  

18   In  a  public  letter  to  the  President  of  Romania,  the  President  of  the  Senate,  referring  to  a  case  of  a  person 
acquitted in first instance but in preventive arrest for 6 months, requested the revocation of the President of 
the HCCJ and of the Chief Prosecutor of DNA accusing them of "deliberately and in bad faith violating the 
fundamental rights of a citizen" and abuse of power.   

19   In parallel, the Chamber of Deputies requested its Legal Commission to reanalyse the nomination of one of 

the CCR judges. 

20   Press  statement  4  February  2015:  CCR  notes  that  the  resignation  took  place  against  the  background  of 

pressure on the Court, in connection with the exercise of its powers under the Fundamental Law. 

5 

 
 
                                                            
decisions defending the professional reputation, independence and impartiality of magistrates.21  

The procedure in place since 2012, involving investigation of the facts by the Judicial Inspection (JI) 
and a decision by the SCM plenum, is now well established. Usually within a few hours of the public 
statements the SCM seizes the JI on the case in question and issues a first press release. Following the 
report of the JI, the SCM takes a decision and issues a press release providing information on the case 
and the conclusion reached. The deadlines are kept as short as possible and are still being reduced with 
regard  to  previous  years:  the  average  reaction  time  is  31  days  compared  to  54  in  2014.  In  several 
occasions where the case was clear, the SCM issued a decision in a few days.  

The SCM's role as defender of the independence of justice is now well-established. The majority of 
the  requests  for  defence  of  the  independence  of  the  justice  system  are  initiated  by  the  SCM  itself, 
without a request from the magistrates concerned. The SCM explained that since some of the criticism 
has been directed at institutions or the justice system in general, the decision to trigger action should 
not be left to the magistrate alone – in particular when cases are still ongoing. The SCM's role has also 
been supported by other institutional actors: one request for defence of the independence of justice was 
made after a unanimous vote of the general assembly of prosecutors in DNA and another was made by 
the  Minister  of  Justice.22  The  SCM  seeks  to  publicise  its  actions  in  this  area  through  issuing  press 
releases.  The  difficulty  in  securing  an  equivalent  level  of  coverage  for  the  SCM  press  statements 
compared to the initial criticisms was noted in the 2015 CVM report.23 Although the decisions of the 
SCM are always transmitted to the National Audio-Visual Council, this has not resulted  in effective 
redress  or  corrections  in  the  media  that  launched  or  relayed  the  attacks.24  It  can  be  noted  that  some 
other Member States have legal obligations for "right of reply" to appear with a comparable level of 
prominence,  in  line  with  the  positions  of  Council  of  Europe  and  case  law  of  the  European  Court  of 
Human Rights.25     

In  Romania,  few  magistrates  seek  redress  in  court.  There  is  no  support  from  the  SCM  to  back  up  a 
decision  of  the  SCM  on  the  substance  with  financial  or  legal  help  for  magistrates  in  such  situations 
(there  are  cases  in  other  Member  States  where  magistrates  receive  advice  and  financial  support  for 
launching an injunction or a criminal complaint), or to take on a case on its own behalf. Proceedings 
are  long  and  uncertain.  The  Chief  Prosecutor  of  DNA  sued  "Antena  3"  for  allegations  made  in  a 
television programme, requesting 1 million Lei for damages and judicial costs. In October 2015, the 
Bucharest  Tribunal  sentenced  "Antena  3"  to  communicate  the  decision  on  the  TV  station  and  the 
journalists to pay damages worth 250,000 lei. The decision is not final. 

Another approach taken in other Member States has been to invest in media training for journalists or 
to appoint judges/prosecutors as trained spokespersons for each institution. Few such steps have been 
taken in Romania so far. 

Appointments 
In line with international standards,26 CVM reports have underlined the importance of transparent and 
merit-based selection procedures for the appointment of leading positions. In view of the appointment 
of  a  new  Chief  Prosecutor  of  DIICOT  in  2015  and  a  number  of  important  appointment  procedures 
expected  in  2016  (including  the  General  Prosecutor,  the  DNA  Chief  Prosecutor,  as  well  as  the 

21   In 2014, the SCM took 11 decisions defending the independence of - justice - and 19 decisions defending the 

professional reputation of magistrates. 

22   http://www.csm1909.ro/csm/linkuri/18_09_2015__76005_ro.doc;  http://www.csm1909.ro/csm/linkuri/13_08_2015__75616_ro.doc 
23   COM(2015) 35 final, p 4. 
24   The National Audio-Visual Council has itself been the subject of criticism by NGOs and in Parliament: its 

President is also the subject of an ongoing DNA investigation.  

25   Council  of  Europe  resolution  of  the  Committee  of  Ministers  on  the  “right  to  reply”,  resolution  (74)  26;  

Factsheet on balancing Article 10 ECHR – freedom of expression -  with Article 8 ECHR _ privacy;  

     Case-law on Freedom of the press, the media and journalists. 
26   Council of Europe Recommendation CM/Rec(2010)12; Venice Commission report on European standards as 
regards the independence of the judicial system; Consultative Council of European Prosecutors,  Opinion 
No.9 (2014) on European norms and principles concerning prosecutors. 

6 

 
 
                                                            
President of the High Court of Cassation and Justice (HCCJ)) the Commission had recommended in 
its January 2015 report to "Ensure that the nomination of the new chief prosecutor of DIICOT takes 
place in accordance with a transparent and merit based procedure and to 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".  2016  will  also  see  elections  for  a  new  composition  of  the 
Superior Council of the Magistracy (SCM). 

For  the  appointment  of  the  Chief  Prosecutor  of  the  Organised  Crime  and  Terrorism  Department 
(DIICOT),  the  established  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.27 The 
circumstances surrounding the end of the term in office of the previous Chief Prosecutor of DIICOT 
gave the appointment a particular sensitivity.  

In  the  2015  procedure,  there  seem  to  have  been  a  number  of  additional  steps  taken  in  terms  of 
transparency  in  particular.  The  Minister  of  Justice  introduced  a  number  of  steps  (publication  of  the 
post, criteria publically defined, names of candidates published) which were not legal obligations, but 
practical steps to improve the procedure.28 The Minister of Justice chose a nomination from amongst 
six candidates, and undertook informal pre-cooperation with the SCM, so as to draw on the experience 
and well defined criteria of the SCM in appointing prosecutors. The procedure was finalised through 
appointment by the President and had been conducted with little controversy. 

The nomination procedure for the Chief Prosecutor of DIICOT also applies to all senior prosecutors, 
their deputies and includes the level of heads of sections in the Public Ministry and the DNA.29 The 
General  Prosecutor  and  DNA  Chief  Prosecutor  posts  are  up  for  renewal  in  May  2016.  All  deputy 
posts of the GP, DNA and DIICOT as well as the heads of section will also be renewed in 2016.30 In 
total, this means that there are 15 prosecution posts to be chosen by the Minister of Justice this year. 
As pointed out in the previous CVM report, this procedure includes a strong political element in terms 
of the role it gives to the Minister of Justice, and no criteria are set at legislative level for ensuring the 
highest level of professional skills and integrity.31 Past appointment procedures have been the subject 
of considerable controversy.32 Recommendations and opinions from the Venice Commission and the 
Consultative  Council  of  European  Prosecutors    have  emphasised  the  importance  of  appointments 
procedures for the independence of the prosecution services, as well as a procedure which encourages 
the highest ethical and professional standards – although the Venice Commission has also noted that it 
"is reasonable for a Government to wish to have some control over the appointment, because of the 
importance of the prosecution of crime in the orderly and efficient functioning of the state".33 

The  SCM  has  proposed  to  align  the  legal  framework  for  nominating  top  prosecutors  on  the  law 
governing the appointment of the President of the HCCJ. As such this would remove the role of the 
Minister of Justice in choosing the candidate, except insofar as the Minister is a member of the SCM.  

This  proposal  is  still  the  subject  of  debate.  In  discussions  with  the  Commission  in  September,  the 
Minister agreed that the Minister of Justice should not be involved in the appointments of Heads of 
Sections or even deputies. However, he argued that there was a legitimate role for the Minister  with 
regard to the nominations of the General Prosecutor and Chief Prosecutors of DNA and DIICOT, on 
the basis that he represents the common interest and would be clearly accountable for the result. At the 
same time, he also noted the importance of more transparency and clearer criteria in the procedure (as 
shown in the DIICOT appointment procedure). In October, the SCM consulted general assemblies of 

27 Art. 54. alin.1-2 din Legea nr. 303/2004.  
28 The only criteria in the law is to have a minimum length of 10 years of experience as judge or prosecutor  
29 See footnote 26 
30 May 2016: GP, Head of DNA, 2 deputy posts GP, 1 deputy post DNA, 1 deputy post DIICOT 
     July 2016: 2 head and 2 deputy head of section posts GP, 1 deputy post DNA, 1 head of section post DNA 
     November 2016: 2 head 1 deputy head of section posts DNA 
31 COM(2015) 35 final, p 3. 
32 COM(2015) 35 final; COM(2014) 37 final; COM(2013) 47 final; COM(2012) 410 final. 
33 Venice Commission, CDL-AD(2010)040;  CCPE opinion N°9 (2014)    

7 

 
 
                                                            
magistrates  on  its  draft  and  concluded  that  there  was  a  strong  majority  of  magistrates  in  favour  of 
transferring  the  responsibility  for  proposing  a  nomination  for  the  General  Prosecutor  and  Chief 
Prosecutors of DNA and DIICOT to the President from the Minister of Justice to the SCM. The SCM 
confirmed its position in a legal proposal.34 

The  term  of  the  President  of  the  HCCJ  will  end  in  September  2016.  The  appointment  procedure 
involves a selection process by the SCM and the appointment by the President of Romania. The 2014 
CVM report noted that the 2013 process was conducted professionally, anticipating the procedure in 
order  to  avoid  an  interim  gap  at  the  end  of  the  mandate.35  It  will  be  for  the  SCM  to  determine  the 
procedures to be followed to govern the selection process. 

The appointment process of a new leadership for the Judicial Inspection took place before summer, as 
part of the periodical renewal. These appointments are based on open competitions organised by the 
SCM and the Judicial Inspection among judicial inspectors already in function. The organisation and 
final appointments did not raise any controversy. 

For other magistrate positions, including leading positions in courts and prosecutors' offices, posts are 
filled  through  open  competitions  organized  by  the  SCM  and  the  NIM.  These  competitions  are 
organised for entry into the magistracy, promotions to higher level courts and appointments in leading 
positions. Each year more than 100 judges and prosecutors are accepted into magistracy or promoted 
to  a  higher  court.  The  entry  into  the  magistracy  includes  two  years  training  in  the  NIM.  The 
competition  based  system  is  often  linked  to  an  increased  independence  and  professionalism  of  the 
Romanian  magistracy.    The  competitions  for  entry  into  magistracy  are  also  open  to  lawyers  with  at 
least five years of professional practice. 

In order to improve the management of magistrates' careers, the SCM is modifying the evaluation and 
promotion  system.  As  part  of  proposed  amendments  of  the  law  on  the  statute  of  magistrates,  36  the 
SCM  is  suggesting  a  number  of  changes  on  the  seniority  conditions  for  promotion  -  raising  the 
duration  for  promotion  of  judges  to  higher  courts  and  for  those  who  apply  for  occupying  a  leading 
position within local courts, tribunals and courts of appeal; on correlating the evaluation of judges to 
some  of  the  efficiency  and  quality  indicators  for  the  activity  of  the  courts;  on  re-entry  into  the 
profession – allowing magistrates with very good professional qualification and more than 10 years of 
experience to re-enter the magistracy after an interruption without competition. 

Another proposed change was to allow lawyers with at least 18 years of professional practice to enter 
the magistracy without competition (based only on an interview of the relevant SCM section).37 This 
proposal provoked strong criticism from inside the magistracy. More than 1500 magistrates signed a 
petition, requiring the SCM to consult all magistrates on the proposed draft. Concerns included a lack 
of clarity as to the scale of the potential entry, and which posts such new entrants might take up, as 
well as a watering-down of the competition-based approach. However, after the consultation process 
showed a clear majority of magistrates opposed to the change, the SCM decided to drop this proposal. 

The  National  Integrity  Agency  (ANI)  is  not  part  of  the  judiciary,  but  it  is  an  autonomous 
administrative  body  with  investigative  and  sanctioning  powers  over  public  officials.    Its  integrity 
mandate inevitably makes the independence of its management and staff of particular public interest. 
The management of the ANI is appointed by the Senate on the basis of an open competition organised 
by the National Integrity Council (NIC). The post of President of ANI became vacant in March 2015 
following the resignation of the previous President. In May, the Senate acknowledged the resignation, 
allowing the NIC to open the post for competition. The NIC made efforts to ensure that the procedure 
was  transparent  and  impartial.  However,  a  first  competition  round  did  not  lead  to  a  result,  as  all 

34   This law is part of a package to change the status of magistrates with regard to appointments, evaluations and 
http://www.agerpres.ro/justitie/2015/10/30/peste-70-dintre-magistrati-in-favoarea-numirii-procurorului-general-si-a-

promotions. 
sefilor-dna-si-diicot-la-propunerea-csm-16-21-05 

35   SWD(2014) 37 final, p18.  
36   Law 303/2004 
37   Magistrates leaving the profession could also become practicing lawyers without passing the Bar exam. 

8 

 
 
                                                            
candidates  failed.    After  a  second  competition,  the  NIC  proposed  a  candidate  to  the  Senate  for 
appointment. The Senate appointed the candidate on 14 December. 

Reform of the Constitution 

The debate on the reform of the Constitution was very prominent in the first part of 2014, as set out in 
the 2015 CVM report.38 A few sessions of the parliamentary committee overseeing the process were 
organised,  in  which  the  Superior  Council  of  Magistracy  participated  on  issues  related  to  the 
independence of justice. No further parliamentary sessions and debates seem to have been organised, 
and no progress has been reported in 2015. The topic of reform of the Constitution largely faded out of 
public debate.   

The Ministry of Justice and the Faculty of Law of the University of Bucharest finalised the CODEX 
Constitutional, a translation into Romanian of all EU Member States' Constitutions, designed to feed 
the debate on any future amendment to the Romanian Constitution. It was presented to the Members 
of Parliament and the President in July.  

2.2 

The new Codes 

Legal systems periodically need to update the Codes that are the basis of the judicial process in 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, 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 would normally be based 
on  a  strong  consensus  and  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.   

Criminal codes: stability of the legal framework 
The  new  Criminal  Code  and  Code  of  Criminal  Procedures  entered  into  force  two  years  ago,  on  1st 
February 2014. Overall this major reform step is seen as a success by the judiciary, as well as by civil 
society.  In  the  January  2015  CVM  report,  the  Commission  recommended  to  "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." A number of developments have called into question the stability of the Codes.  

Since  the  entry  into  force  of  the  Criminal  Code  and  the  Code  of  Criminal  Procedures,  the 
Constitutional  Court  has  taken  5  decisions  on  the  Criminal  Code  and  20  decisions  on  the  Code  for 
Criminal Procedures which have declared provisions unconstitutional. On the Criminal Code, the main 
decisions  taken  in  2015  were  to  annul  a  provision  criminalising  the  conflict  of  interests  based  on 
commercial  relations,  on  the  grounds  that  the  concept  of  commercial  relations  of  the  new  Criminal 
Code lacks clarity and predictability; and to rule that the extended confiscation is not applicable for 
assets acquired before the entry into force of the law in 2012. 39 On the Code of Criminal Procedures, 
the  main  decisions concerned the need  for a time-limit with respect to preventive judicial measures, 
such  as  custody  or  house  arrest;  the  deadline  for  the  prosecution to  request  an  extension of  pre-trial 
arrest; procedures at the stage of the preliminary judge, ensuring the rights of the parties to be present 
or  to  appeal;  procedures  for  reopening  cases  and  subpoenaing  parties;  extraordinary  appeals  and  the 
presence of parties; and the separation of judicial functions and incompatibilities of judges having to 
serve in the preliminary chambers and the judging court.40 

The decisions of the CCR have had important consequences for the courts and the prosecution: these 
decisions impact the working arrangements (council rooms, allocation of judges to cases, deadlines), 
the workload and also the substance of certain cases (notably on conflict of interest). In response to the 

38   COM(2015) 35 final, p5. 
39 Decision n°603 of 6 October 2015; Decision n°11 of 15 January 2015 
40  The  CCR  also  took  a  decision  annulling  the  possibility  of  the  prosecution  to  drop  charges  when  the  public 

interest is not served in prosecuting, but motivation of the decision is still waiting. 

9 

 
 
                                                            
CCR rulings, the judiciary has adapted very quickly to the organisational changes, through proposals 
for  legal  amendments,  and  pragmatic  steps  to  apply  the  rulings  even  before  revised  legislation  is  in 
place.  This  reflects  a  desire  in  particular  to  respect  the  ECHR  and  the  case-law  of  the  Court  in 
Strasbourg on the right to a fair trial and the rights of the parties in all aspects of the Criminal Codes. 
Nevertheless,  in  the  interim  before  amended  legislation  is  in  place,  there  is  an  increased  risk  of 
diverging  interpretations  and  practice.  The  Ministry  of  Justice  has  also  reacted  swiftly  to  the  CCR 
decisions  either  by  adding  additional  amendments  to  the  drafts  already  pending  in  Parliament  or  by 
adopting  government  executive  ordinances,  where  there  was  an  urgent  need  to  establish  legal 
certainty. The Romanian Constitution sets a limit of 45 days for the implementation of Constitutional 
Court rulings. Passed this deadline the provisions deemed unconstitutional are annulled. 

However, the Parliament has not yet adopted any of the draft amendments to the Criminal Code and 
the  Code  of  Criminal  Procedures  proposed  by  the  Government  in  consultation  with  the  judiciary. 
These  include  government  proposals  from  February  2014  and  two  proposals  from  January  and  June 
2015 to adopt government executive ordinances amending the Code of Criminal Procedures following 
the rulings on judicial control and house arrest, as well as a series of technical amendments coming 
from the judicial system. 

The  parliamentary  debate  led  to  a  variety  of  additional  amendments  being  put  forward,  several  of 
which  triggered  negative  reactions  from  the  judicial  authorities  invited  by  the  Parliament  to 
comment41.  The  judicial  authorities  criticised  the  amendments  on  the  grounds  that  they  would  harm 
the  fight  against  corruption  and  reduce  the  capacity  of  the  prosecution  and  judges  to  investigate  or 
sentence  corruption  crimes. Some of these  amendments were  put forward by MPs themselves under 
investigation or convicted for corruption.42 The debate also led  to criticism of some amendments by 
NGOs and several Member States' embassies.43 Some draft amendments were rejected, others adopted 
by  the  Senate  in  spring  2015.  One  of  these  would  have  replaced  the  provision  that  "preventive 
measures  may  be  ordered  if  there  is  evidence  leading  to  a  reasonable  suspicion"44  by  "preventive 
measures  can  be  ordered  if  solid  evidence  is  available".  The  public  debate  on  this  amendment  was 
confused  by  an  impression  that  the  status  quo  was  that  no  evidence  was  required  (as  opposed  to 
"evidence leading to reasonable suspicion"). On all these additional amendments, the government, in 
line  with  the  positions  of  the  Superior  Council  of  the  Magistracy,  the  High  Court  of  Cassation  and 
Justice and the National Anti-Corruption Directorate, gave a negative opinion.  

All amendments of the Government and the Parliament need again to be considered by the Chamber of 
deputies  as  decisional  chamber.  In  the  light  of  the  controversy,  discussions  in  the  Parliament  were 
adjourned until after summer recess. Since then, the debate has not resumed, though new amendments 
continue  to  be  tabled.  The  result  is  that  government  proposals  to introduce  refinements  identified  in 
the weeks after the entry into force of the legislation remain pending, almost two years after entry into 
force, while problematic amendments are still on the table. 

In a meeting with the Committees for Legal Affairs of the Chamber and the Senate in November, MPs 
stated  to  European  Commission  representatives  their  willingness  to  adopt  only  amendments  which 
could secure a reasonable consensus, including the support of the judicial system. Transparency of the 
process improved as all draft legislation was uploaded in an electronic repository which is publically 
available. It is now possible to see the amendments and the stage at which they are, the results of the 
vote in the other chamber as well as the position of the government.  

41 http://www.hotnews.ro/stiri-esential-20221493-presedintele-inaltei-curti-livia-stanciu-presedintele-csm-marius-tudose-prezenti-sedinta-

comisiei-juridice.htm 

42 Pl-x nr.574/2015; Amendments proposed by 9 MPs, 4 of them under investigation or convicted for corruption 
(G. Marian, convicted in May 2015 for abuse of service; M. Manolache, investigated since October 2013;  P. 
Florin-Costin , convicted in March 2015 for conflict of interests; R. Catalin-Marian, indicted in April 2014). 

43 http://stiri.tvr.ro/lunea-neagra-la-senat-suspiciunile-rezonabile--inlocuite-cu-probe-temeinice-la-arestul-preventiv_60252.html 
44 Article 202 (1) of the Romanian Criminal Procedure Code, translation in English provided by a project of the 

Ministry of Justice together with the Government of the Netherlands. 

10 

 
 
 
                                                            
Implementation of the Criminal Code and Code for Criminal Procedures 

The  difficulties  in  getting  to  a  stable  legal  framework  should  not  overshadow  the  efforts  of  the 
judiciary  in  the  implementation  of  the  codes.  The  2015  CVM  report  noted  the  success  of  the 
judiciary's implementation efforts. 45 The judicial institutions, judges and prosecutors, and court clerks, 
continue  to  make  an  effort  to  make  the  reform  work.  They  have  been  supported  also  by  thorough 
training programmes by the National Institute of Magistracy and the National School of Clerks.46 

The  HCCJ,  the  General  Prosecutor,  the  SCM  and  the  Ministry  of  Justice  have  continued  to  offer 
intensive  support  to  all  courts  and  prosecutor  offices  targeted  on  helping  the  transition  and  tackling 
obstacles, for example quarterly meetings to discuss inconsistent practices, or meetings to identify and 
solve  managerial  problems,  or  central  service  in  the  Public  Ministry  answering  questions  from 
prosecutors. The Minister of Justice has continued to take steps to supplement the number of positions, 
in particular court clerks and investigators. 

Judges  and  prosecutors  have  expressed  their  satisfaction  with  the  new  codes.  The  preliminary 
chamber,  which  is  a  very  new  concept  in  the  criminal  code,  still  raises  questions  from  a  number  of 
judges, especially as several CCR rulings have already modified its functioning. However, others have 
pointed to its advantages to deal with problems relating to exceptions and evidence before entering in 
the trial phase. 

The Public Ministry has analysed the application in 2014 of the new procedures such as plea bargains, 
renunciation  to  criminal  investigation,  and  restitutions.  On  this  basis,  the  General  Prosecutor  has 
issued guidelines to promote good practices and ensure coherent application in all prosecutors' offices. 
The guidelines define in particular criteria which should be taken into account when deciding to drop 
the criminal investigation.47 The General Prosecutor has recognised that close monitoring would also 
be  needed,  as  the  possibility  of  dropping  the  criminal  investigation  may  also  be  a  risk  area  for 
corruption. 

The  SCM  has  set  up  a  working  group  to  analyse  the  impacts  of  the  four  new  codes.  The  Group 
produced  an  extensive  analysis  of  the  implementation  of  the  Codes  including  the  efficiency  of  the 
courts,  the  activity  of  the  prosecutors'  offices,  the  activity  of  the  High  Court,  human  resources,  the 
application  of  the  preliminary  chamber,  and  the  social  impact  of  the  legal  provisions.  The  report 
provides  some  preliminary  conclusions  and  recommendations,  some  of  them  being  far  reaching  and 
also controversial inside the judiciary. At this stage, it is not clear how the recommendations will be 
followed  up,  particularly  as  they  were  not  pre-consulted  with  other  key  institutions  including  the 
Ministry of Justice and the HCCJ. The inter-institutional group created by the Ministry to discuss the 
impact of the criminal codes only met once (in May 2015). The SCM plans a new evaluation in 2017. 
The  statistics  regarding  the  efficiency  of  courts  suggest  that  the  average  duration  of  cases  in  2014 
increased in all degrees of jurisdictions with regard to 2012 and 2013 (see below).  

Respect of fair trial rights 

Respect of fair trial rights in line with ECHR case law is an essential element of the criminal codes 
and the criminal judicial proceedings. Trust in the respect of fair trial rights in another country are the 
basis for judicial cooperation in criminal matters.  

The issue of respect of fair trial rights in criminal proceedings has come up several times in the public 
debate this year. The criticism has been voiced in cases relating to the activity of the prosecution and 
has  been  cited  as  one  of  the  justifications  for  amendments  to  the  Code  of  Criminal  Procedure 
presented in Parliament (see above). Criticism included the use of preventive arrest measures, the use 

45 SWD(2015) 8 final, p8; COM(2015) 35 final, p6. 
46 27 e-learning courses were completed in 2015 in the field of new codes and were taken by 100 magistrates 

(each magistrate having taken an average of 6-7 e-learning courses). 

47 The CCR annulled this provision of the Code of Criminal Procedures on 20 January 2016. 

11 

 
 
                                                            
of  handcuffs,  and  the  access  of  the  media.  Although  there  are  no  specific  rules  in  place  for  people 
arrested for alleged corruption crimes,48 it was these cases which attracted comment.   

The  use  of  preventative  measures  by  prosecutors  are  authorised  and  controlled  by  a  judge.  The 
decisions  can  be  appealed,  while  judicial  control  measures  are  regularly  reviewed.  Regarding  high 
level corruption cases, throughout 2015 and previous years, there are examples of HCCJ and appeal 
court decisions refusing requests of DNA prosecution. So, judicial control and checks are in place.  

Regarding  the  media,  DNA's  policy  is  that  press  releases  are  issued  only  after  the  defendant  is 
informed  about  the  steps  the  DNA  is  taking  against  him  and  the  presumption  of  innocence  of  the 
defendant is clearly affirmed.49 As an additional control within the system, the Judicial Inspection can 
also be seized if someone believes that a prosecutor or judge did not respect the procedures, but this 
does not appear to have been the case over the past year. The DNA informed the Commission that it 
had received no complaints about its press statements since 2013. 

More generally, the issue of fair trial rights has been an important theme in the rulings and statements 
of the Constitutional Court (CCR), the HCCJ, the DNA and the judiciary in general. It is an important 
theme of the new Codes – introducing the "rights and liberty" judge that will examine and control the 
demands of the prosecution, in terms of search and arrests. Since the introduction of the new criminal 
codes, the CCR has ruled on several "open" issues or has annulled provisions, in view of re-enforcing 
respect for fair trials in line with ECHR case law: application of the most favourable law, deadlines for 
judicial control, and rights of the parties in the preliminary chamber. In all these cases, the judiciary 
has been quick to adapt and the Minister of Justice has put forward necessary laws accordingly. 

Judges and prosecutors in Romania seem to be well aware of ECHR case-law, with many complaints 
against Romania in the European Courts of Human Rights. In 2014 there were 87 judgements of the 
ECHR  against  Romania,  with  74  finding  at  least  one  violation,  and  more  than  3000  cases  pending 
(Romania is on the 5th place among 47 on the number of pending cases).50 The majority of these cases 
concern prison conditions and the ineffectiveness of the mechanism for restitution or compensation for 
properties  nationalised  during  the  communist  period.  The  Council  of  Ministers  of  the  Council  of 
Europe is monitoring the implementation by Romania.  

Civil codes 

The new Civil Code entered into force on 1 October 2011. The new Code of Civil Procedure entered 
into force on 15 February 2013, with some provisions to become operational on 1 of January 2016.51 
The transition towards the application of new Code of Civil Procedure is now coming to an end with 
the  large  majority  of  cases  in  courts  now  falling  under  the  new  code  (this  begins  to  be  felt  even  at 
Constitutional  Court  level,  which  is  starting  to  receive  more  cases  concerning  the  new  civil  codes). 
This greatly facilitates the work of the judges, clerks, parties and lawyers.  

The  Constitutional  Court  has  ruled  on  several  provisions  of  the  civil  codes,  in  particular  the  CCR 
annuled  in  December  an  amendment  to  the  Code  of  Civil  Procedure  transferring  the  powers  on  the 
writs  of  execution  from  courts  to  bailiffs.52  This  amendment  had  been  promoted  by  the  Superior 
Council of Magistracy and the Ministry of Justice to diminish the workload of courts. 

In meetings with the Commission, judges have expressed their satisfaction with the new procedures. 
Overall there are fewer cases per hearing day and more material decisions taken within the courts of 
first instance. Although the date of first hearing is set much later than under the old code – and  some 
lawyers have expressed concern that some of the first instance hearings are set within more than one 

48 For example, rules on the use of handcuffs are a matter for the police under the authority of the Ministry of the 

Interior. 

49 There have however been problems of leaking to the press before the defendant is heard by the DNA, but it 

has not been established who might be responsible. 

50 http://www.echr.coe.int/Documents/Stats_pending_2014_ENG.pdf 
51 Articles XII, XIII,XVIII, XIX,  of Law no.2 of 1st of February 2013.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   
52 Decision of 17 December 2015, provisions of art.666 of the Civil Procedure Code are unconstitutional 

12 

 
 
                                                            
year53  –  this  seems  to  have  a  beneficial  impact  as  the  cases  are  now  much  better  prepared.  The 
preliminary  phase  also  allows  filtering  out  cases  that  are  poorly  prepared:  some  lawyers  have  also 
argued that certain judges are too keen to reject cases, though the SCM has now issued guidelines for a 
uniform  application  of  the  provision.  A  majority  of  cases  can  be  concluded  in  a  single  session, 
whereas previously only 15 to 20 per cent of cases were actually solved the same day.  

This  major  reform  is  thus  nearly  finalised,  except  for  the  implementation  of  some  provisions  which 
should  have  entered  into  force  in  January  2016.  These  provisions  refer  to  solving  cases  in  council 
chamber, preparing files in appeal phase by the court that pronounced the ruling that is appealed, and 
changing the value ceiling for jurisdiction of cases. The Ministry of Justice together with the SCM had 
launched  in  the  beginning  of  2015  an  exercise  to  evaluate  the  readiness  of  all  courts  to  apply  these 
provisions. However, this exercise has not progressed as planned and by the end of November 2015, 
there was no clear assessment, except that some courts do not have sufficent council rooms. Whilst a 
comprehensive picture is not available, it seems clear that the intention to use the delay to adapt the 
physical  infrastrcutre  of  courts  to  the  new  requirements  has  not  been  realised.  It  has  therefore  been 
decided to postpone the entry into force of the new provisions until 1 January 2017 and a chapter in 
the Action Plan will detail the steps required to ensure effective implementation. 

The  inter-institutional  committee  discussing  the  implementation  of  the  Civil  Codes  meets  regularly. 
The  members  of  the  committee  which  drafted  the  codes  usually  attend  these  meetings,  in  order  to 
ensure continuity with the original philosophy of the codes. 

2.3 

Consistency of jurisprudence and predictability of the judicial process 

The consistency of jurisprudence has been used as a term to describe the need for consistent judicial 
decisions on similar cases taken by different courts and judges. This is important for the quality and 
predictability  of  the  judicial  process,  supporting  the accountability of  the  justice  system  towards  the 
society  it  serves.54  Inconsistency  of  judicial  decisions  affects  public  perceptions  of  the  judicial 
system.55  If  the  same  justice  system,  using  the  same  legal  instruments,  may  render  two  evidently 
different  decisions  in  two  similar  cases,  this  causes  uncertainty,  and  can  even  fuel  suspicions  of 
corruption. 

Different  elements  contribute  to  the  consistency  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  and  in  the 
CVM process. 

In  line  with  its  constitutional  role,  the  High  Court  of  Cassation  and  Justice  (HCCJ)  has  the  main 
responsibility in the consistency of jurisprudence and interpretation of the laws. An increasing part of 
the HCCJ’s work is dedicated to enforcing uniform interpretation and practice. The HCCJ fulfils this 
role through defined legal mechanisms and meetings with lower level courts. 

Legal consistency mechanisms  

The HCCJ has two legal mechanisms at its disposal for unifying jurisprudence and providing a unitary 
interpretation: the preliminary ruling and the appeal in the interest of the law. The "preliminary ruling 
procedure",  introduced  by  the  new  procedural  codes,  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.  Appeals  in  the  interest  of  the  law  can  be  used  to  resolve  the 
interpretation of the law when facing inconsistent judgements. 

53 From the Romanian Bar Association, Bucharest Bar and Timisoara Bar 
54  ECtHR  has  found  that  under  certain  conditions  divergences  in  case-law  lead  to  violation  of  Art.6  ECHR, 

§211-215 http://www.echr.coe.int/Documents/Guide_Art_6_ENG.pdf 

55 Practical guide to Art. 6 ECHR, civili limb, § 214, http://www.echr.coe.int/Documents/Guide_Art_6_ENG.pdf 

13 

 
 
                                                            
The number of requests for preliminary rulings continues to increase. In criminal matters, there were 
35 preliminary questions lodged and 33 settled compared with 31 questions lodged and 28 settled in 
2014. There is a strong increase in civil matters, including administrative and tax matters: there have 
been 51 questions lodged and 47 settled in 2015,compared with 17 questions lodged and 13 settled in 
2014.. This shows that the mechanisms work well and that judges in lower courts make use of it. 

An  increasingly  important  share  of  the  work  of  the  HCCJ’s  sections  is  dedicated  to  the  solving  of 
preliminary questions. The solution of a preliminary question involves a panel of at least nine judges, 
when  restricted  to  one  area  of  law,  but  can  go  up  to  eighteen  judges  when  several  areas  of  law  are 
concerned. The deadlines for solving the question are very strict (maximum three months from receipt) 
and the HCCJ has set up a comprehensive reporting method for each panel, ensuring thorough legal 
analysis  and  debate  as  well  as  the  strict  respect  of  the  deadlines.  The  HCCJ  has  also  created  a  new 
department  of  assistant  magistrates  specialising  in  preliminary  rulings,  supported  by  a  government 
decision to provide 4 extra posts of assistant  magistrates and 6 posts of court clerks.56 All questions 
and rulings are posted on the HCCJ website on the same day. Within thirty days after the ruling, the 
motivation  is  also  published  in  the  Official  Gazette  and  the  interpretation  of  the  HCCJ  becomes 
obligatory for all courts. When relevant, the Prosecutor-General or Courts of Appeal also provide their 
opinion on the question.57 
Examples can illustrate the importance of the interpretative rulings of the HCCJ.58 In criminal matters, 
the HCCJ solved the question on persons exercising the profession of lawyer but not belonging to the 
official Romanian Bar. This issue dates back since 2000, and has given rise to contradictory case-law 
and diverging practice, as well as confusion for citizens. It was raised with the European Commission 
by  other  EU  countries.  The  interpretation  now  clearly  states  that  a  person  exercising  the  activity  of 
lawyer which is not recognised commits the crime of unlawfully exercising the profession.59 In civil 
matters, the HCCJ solved a question relating to the method of calculating the salary of employees of 
public institutions, following a change in the law. The ruling clarified the situation for all categories of 
employees concerned and thereby solved thousands of outstanding cases in courts.60 

The  efficiency  of  the  mechanism  to  solve  problems  of  inaction  by  the  administration  is  also 
demonstrated  through  a  second  ruling  on  the  environmental  stamp.  In  2011,  an  ECJ  decision  ruled 
illegal the environmental stamp collected by the Romanian authorities.61 This led to a surge of court 
cases  from  citizens  asking  for  reimbursement,  which  the  administration  fought  up  to  the  level  of 
appeal in all cases. Following a first ruling by the HCCJ, the government took a decision that citizens 
should  be  reimbursed.  This  created  another  rush  of  cases  regarding  interest  to  be  paid  or  limitation 
periods.  In  September  2015,  the  HCCJ  ruled  on  a  preliminary  question  on  this  issue  and  thereby 
solved many thousands of cases in courts and in the administration. These examples illustrate how the 
solving  of  preliminary  questions  has  helped  to  resolve  repetitive  administrative  cases  which  are  a 
burden on the courts and which are often reported to be the source of contradictory rulings.  

The other unification mechanism, appeals in the interest of the law, continues to provide a substantial 
contribution  to  unification.  In  2015,  18  appeals  were  lodged  and  19  were  settled  in  civil  matters;  6 
appeals  were  lodged  and  7  were  settled  in  criminal  matters.  A  recent  decision  has  helped  to  solve 
contradictory  judgements  on  tax  evasion,  concerning  the  civil  part  on  damages  to  the  state.  This 
mechanism can also be used for procedural questions, which is not the case for preliminary rulings.62 

56 Government Decision N° 486 of 30 June 2015 
57 In the preliminary ruling procedure, HCCJ requested a point of view of the Prosecutor general on 30 Cases in 

criminal matter and one in civil matter. On the appeal in the interest of law, 3 were filed by the PG. 

58 See also the rulings on the status of doctors in public hospitals mentioned in section 2.1 
59 Decizia ICCJ 15/2015;  reports say the practice still exists (e.g in Tulcea County) 
60 Decision of 19 October 2015, case nr.  1329/1/2015 
61 Judgment of the Court (First Chamber) of 7 April 2011,  Case C-402/09, Ioan Tatu v Statul român  
62 In Civil matters, the preliminary ruling request can also address procedural questions if these are related to the 

merits of the case. 

14 

 
 
 
                                                            
Management action for consistency 

With  many  new  procedures,  the  entry  into  force  of  new  procedural  codes  is  a  potential  source  of 
diverging  interpretations  and  practice,  which  cannot  easily  be  addressed  by  the  legal  unification 
mechanisms  (essentially  limited  to  the  interpretation  of  substantive  law).  As  a  result,  the  onus  falls 
rather on the management of the judicial system to encourage coherent practices. The judicial system 
has put in place and continues to develop different managerial actions to unify the interpretation and 
the  practice,  in  particular  concerning  the  Code  of  Criminal  Procedure  and  the  Code  of  Civil 
Procedures.  

Regular meetings and discussions take place at national level with representatives of HCCJ, the courts 
of appeal, the SCM, the NIM on the basis of a list of topics with divergent interpretations – eight such 
meetings were held in 2015. When common solutions are found, guidelines are provided for all courts 
to follow. 

The HCCJ, the courts of appeal and lower courts also use monthly or quarterly meetings within their 
courts  to  reach  "agreement  in  principle"  on  potential  diverging  interpretations.  The  consensus  or  a 
majority position is then distributed as guidance to all judges in those courts. A Commission visit to 
the courts in Timisoara in 2015 confirmed the regularity of these meetings and their utility for judges. 
Meetings with judges in Bucharest and Timisoara highlighted also an increased recognition amongst 
judges concerning their responsibility to ensure consistency of decisions. 

The  coherence  of  court  decisions  and  judicial  practice  is  also  part  of  the  training  of  judges  and 
prosecutors  in  the  National  Institute  of  Magistracy.  In  the  Public  Ministry,  a  special  service  for 
guidance and analysis also issues guidelines for unifying practice at prosecutorial level. The SCM has 
also set up online wiki for unifying jurisprudence, where courts can upload the results of its internal 
discussions and a forum were judges throughout the country can discuss cases of non-unitary practice. 
A common interpretation can also emerge from these discussions. Through its thematic inspections in 
courts  and  prosecutors  office,  the    Judicial  Inspection  also  contributes  to  unification  by  making 
relevant recommendations when there are diverging practices or procedures. 

Publication of jurisprudence 

The  availability  of  on-line  open  and  searchable  access  to  all  court  decisions  has  been  a 
recommendation  of  successive  CVM  reports,  as  one  of  the  means  for  magistrates  and  all  parties  to 
refer to similar cases and decisions.63  

The HCCJ continues to publish its decisions on its website. It publishes summaries of key decisions as 
well as the full texts of all decisions. The result is that there are now with over 4,600 summaries and 
over 117,000 (anonymised) full texts, including the decisions concerning preliminary ruling requests, 
all available online. 

The  ROLII  project  (Romanian  Institute  for  legal  information)  to  publish  all  court  decisions  online, 
under discussion for some years and referred to in previous CVM reports,64 has finally been developed 
in a public private partnership: ROLII (SCM, Romanian Bar Association and Association of Notaries) 
and a publisher. The ROLII portal was launched on 16th of December 2015. 

Obstacles to the consistency of jurisprudence  

Despite  these  concrete  measures  to  encourage  consistency  and  signs  of  a  cultural  shift  in  favour  of 
consistency, inconsistent decisions are still frequently reported. Whilst some issues relating to the new 
Codes should be resolved through the passage of time, others suggest more structural problems.  

Previous  CVM  reports  have  identified  a  number  of  obstacles  to  the  consistency  of  jurisprudence. 
Some  of  these  are  broader  issues,  such  as  of  the  quality  of  legislation  and  the  risks  inherent  in 
widespread recourse to instruments such as Government Executive Ordinances.65,66 The importance of 

63 COM(2015) 35 final, COM(2014) 37 final. 
64 COM(2015) 35 final, SWD(2015) 8 final, COM(2014) 37 final, SWD(2014) 37 final. 
65 COM (2015) 35 final, SWD(2015) 8 final, p14. 

15 

 
 
                                                            
the  uniform  application  of  the  law  and  the  uniform  implementation  of  court  decisions  by  the  public 
administration has also been noted. A planned reform of public administration67, with the support of 
EU funds, could help to promote a consistent approach by public administration towards the judicial 
system.  This  reform  adopted  by  the  Government  one  year  ago  is  still  awaiting  implementation. 
Cooperation between the judicial leadership and the Bar – as seen in the ROLII project – can also help 
in terms of coherence and a clear explanation of apparent divergences. Others questions relate more 
specifically to the judicial system.  

Whilst every case has its own specificities, the motivation of the decision can be used to explain cases 
where  there  is  an  apparent  divergence  from  precedents  or  jurisprudence  from  higher  courts.68  This 
points to the importance of training in drafting motivations, as well as the need for sufficient time to 
be given to this aspect of a case  – judges, particularly in lower level courts, have commented to the 
Commission  that  they  do not  have  sufficient  time  to  write  their  decisions  within  the  legal  deadlines 
while keeping their standards of quality. This issue of efficiency is further developed below. 

2.4 

Structural reforms  

Structural  reforms  to  the  administration  of  justice  have  been  shown  to  have  a  direct  impact  on  the 
effectiveness of justice. Issues like the efficiency 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.   

In  the  2015 CVM  report,  the  Commission  made  several  recommendations  in  this  area:  on  an  action 
plan to implement the strategy, on the need for management information tools, on finding pragmatic 
solutions  as  an  alternative  to  a  law  on  small  courts,  and  on  the  follow-up  of  court  judgements.  The 
design and implementation of structural reforms is a shared responsibility of the judicial management, 
in  particular  of  the  Minister  of  Justice  and  of  the  SCM.  The  Presidents  of  the  Courts  and  the  Chief 
Prosecutors also contribute. 

The Strategic framework 

At  the  end  of  2014,  the  government  adopted  a  Strategy  for  the  Development  of  the  Judiciary  2015-
2020,  setting  out  a  vision  for  the  judiciary  and  the  key  steps.69,  70  This  document  draws  heavily  on 
CVM  recommendations,  and  studies  developed  with  the  World  Bank,  in  particular  the  Functional 
Analysis of the Romanian judiciary. The strategy document is a high level description  of vision and 
objectives, to be backed up by an action plan on further details on actions and deadlines. 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.  

An action plan prepared by the Ministry of Justice in consultation with all judicial institutions has been 
technically  ready  since  summer,  but  was  only  launched  as  a  public  consultation  in  November.  The 
action  plan  will  be  updated  at  the  start  of  2016  in  the  light  of  the  comments,  also  to  follow  the 
priorities  of  the  new  government.  No  budget  has  yet  been  earmarked  for  the  implementation  of  the 

66  For  2015,  the  Ombudsman  reports  raising  7  exceptions  of  unconstitutionality  including  2  concerning 

Government Executive ordinances and filing 3 requests for appeals in the interest of the law.  

67  http://www.mdrt.ro/userfiles/strategie_adm_publica.pdf 
68  Divergence of case law among last instance courts or where a supreme court departs from its own case law 

can lead to a violation of Art 6 §1 ECtHR Guide on Art. 6, § 193 

69  The  Strategy  for  the  Development  of  the  Judiciary  2015-2020  was  approved  by  Government  Decision  no. 

1155/23.12.2014. 

70 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. 

16 

 
 
                                                                                                                                                                                          
action plan: multi-annual programming will also be needed for the national funding in the context of 
the use of EU funds for justice projects.  

The fact that the Action Plan has not yet been adopted has not stalled all progress in judicial reform. A 
number of actions have been initiated and pursued, notably regarding efficiency of justice and criminal 
asset management.  

Resources 

The  Ministry  of  Justice  has  continued  to  support  the  reform  of  the  justice  system  through  securing 
budget for the justice system71 and providing additional posts, in total 390 additional positions: 60 anti-
fraud specialised personnel (5 DNA, 10 DIICOT, 45 prosecutor's offices); 4 assistant-magistrate and 6 
clerks  for  the  HCCJ;  20  positions  of  judge  and  70  positions  of  clerk  for  courts;  10  positions  of  IT 
specialists  for  the  Ministry  of  Justice;  60  positions  of  clerk  for  the  Public  Ministry;  50  positions  of 
prosecutor and 55 positions of clerk and administrative personnel for DNA; 45 positions of clerk and 
administrative personnel for DIICOT; 10  positions of probation personnel for the National Probation 
Directorate. 

In  the  past  two  years,  the  number  of  posts  of  court  clerks  has  been  increased:  from  about  5800  in 
January 2014, the number now reaches more than 6000. Most of the vacant positions will be occupied 
by the graduates of the National School of Clerks (NSC).  The NSC has received support to train more 
court  clerks,  but  the  numbers  passing  through  the  Institute  do  not  appear  to  be  enough  to  fill  the 
vacancies  in  all  courts.  As  an  exception,  the  law  allows  for  entry  into  profession  through  a  local 
competition  organised  by  the  Court  of  Appeal.  However,  the  NSC  reported  that  the  entry  into 
profession through local competition has become widespread and therefore expressed concerns about 
insufficient professional training for these court clerks.  

The  Superior  Council  of  the  Magistracy  (SCM)  is  developing  a  more  pro-active  human  resources 
management through a better overview of the staffing situation and the staffing needs, in conjunction 
with a better monitoring of the workload and efficiency of the courts and anticipation of future needs. 
The SCM has also proposed a change in the evaluation and promotion system of magistrates, as part of 
the  amendments  to  the  Law  303/2004.  The  draft  law  was  transmitted  to  the  Minister  of  Justice  in 
November 2015. 

Structural  reform  of  the  justice  system  also  needs  to  be  accompanied  by  the  modernisation  of  the 
buildings and IT systems. A series of construction or rehabilitation works in courts financed through 
World  Bank  loans  are  still  ongoing.    As  already  noted,  the  need  for  more  Council  rooms  to 
accommodate the preliminary stages in the Civil and Criminal Procedure Codes do not seem to be met 
in all courts, in particular the courts with high workloads.  

The HCCJ faces logistic difficulties in terms of offices and council rooms, and these problems were 
made more complicated by the ruling of the Constitutional Court that the preliminary chamber phase 
should be in the presence of the parties, requiring a council room. The HCCJ is now using the council 
rooms of the military court of appeal, while the economic department has been moved to a wing in the 
Parliament  building.  The HCCJ  has  benefited  from  an  important  increase  in  judges,  assistant  judges 
and  court  clerks  in  the  last  years,  but  still  has  a  serious  shortfall  in  office  space.72  As  a  long-term 
solution,  the  former  Minister  of  Justice  had  initiated  the  plan  for  building  a  Justice  District  in 
Bucharest with the support of the World Bank. 

Management tools, efficiency and quality of the judicial process  

The SCM  has continued the development of tools for monitoring  and managing  the activities of the 
courts: as well as the ROLII project (see above), electronic case file application has been introduced in 
some Courts of Appeal, also supported by the local Bar associations. The EMAP portal is used by the 
SCM  for  interconnection  of  information  available  in  different  courts  and  for  managing  various 

71  From beginning 2013 to end 2015, the budget increased by 46%. 
72  Some offices hold up to 13 assistant magistrates or 6 judges. The archiving of files all over the HCCJ building 

and the physical handling of files in trial phases is particularly difficult. 

17 

 
 
                                                            
administrative  and  human  resource  activities,  while  the  STATIS  system  monitors  the  activity  of  the 
courts in handling cases and is now installed in all courts.  

The STATIS monitoring, based on five indicators relating to efficiency, is also linked to performance 
standards and helps to identify areas in need  of improvement,  both for individual  courts and  for the 
court system as a whole.   At the end of every statistical year, the SCM's Department of Judges and the 
Judicial  Inspection  will  analyse  courts  which  have  a  “satisfactory”  or  “inefficient”  efficiency  level. 
The  result  of  the  analysis  will  be  discussed  with  the  management  of  the  courts  in  question  and  the 
immediately superior courts to develop measures to address the inefficiencies.  

The STATIS tool has been used for analysing the impact of the new codes on the activity of the courts 
and developing court-crossing conclusions for 2014. At Judicatorie (district court) level, the number of 
cases has increased both in civil and in criminal matters. The increase of the number of cases in civil 
matters seems to be due to cases of forced execution. At Tribunalele level, there has been a decrease of 
cases in non-criminal matters, but a substantial increase of newly registered criminal cases. The SCM 
report  explains  that  the  latter  is  linked  with  the  new  competence  of  the  tribunals  to  judge  in  first 
instance  the  cases  investigated  by  DNA  and  DIICOT  (see  section  0).  As  for  Court  of  Appeal  level, 
there  is  a  decrease  of  files  in  non-criminal  matters  and  an  increase  of  files  in  criminal  cases.  The 
analysis  also  shows  an  increase  in  the  average  duration  of  settlement  of  cases  in  all  degrees  of 
jurisdiction  both  in  non-criminal  and  in  criminal  matters.  A  similar  conclusion  was  reached  in  the 
courts  performance  index  for  2015,  a  research  conducted  by  the  Romanian  NGO  Funky  Citizens, 
analysing the impact of the new codes onto the legal system.73 

As stated by the SCM report, the causes for the average lower performance in 2014 are not clear and a 
further analysis will have  to be performed. Importantly, the SCM and court managers now have the 
tools to monitor the situation and are taking corrective actions. As an example, when the Commission 
visited the Court of Appeal in Timisoara  – where an analysis of the STATIS results had shown that 
one of the main causes of delay was to acquire evidence and receive reports from experts – the Court 
and experts agreed to set deadlines. 

Balancing the workload 

The analysis of the SCM confirms earlier findings that the workload is unbalanced between courts. In 
the  big  cities,  judges  report  very  high workloads  and  complain  that  the  pressure  to  comply  with  the 
legal  deadlines  for  finalising  a  case  can  sometimes  compromise  quality  standards,  in  particular  in 
writing motivations.  

The draft bill to close some courts and public prosecutors’ offices was rejected by the Senate in May 
2015. The SCM and the Ministry of Justice are pursuing an alternative solution for the redrawing of 
the  judicial  map  which  consists  in  reassigning  certain  localities  in  the  territorial  competence  area  of 
courts  within  the  same  court  of  appeal,  by  way  of  a  Government  Decision.  The  SCM  made  a  first 
proposal in September 2015 of reassigning the jurisdiction localities within the area of jurisdiction of 
the  Court  of  Appeal  of  Cluj.  The  decision  was  approved  by  the  Government  in  October.  At 
prosecution  level,  the  Prosecutor-General  has  proposed  to  regroup  prosecutors  at  Tribunal  (2nd 
instance) level and close prosecutors' offices at first instance, noting that some offices are too small or 
have low workload and finalised an impact study in December 2015 to be consulted with the system. 

Another element which has an impact on the workload of courts is the issue of repetitive cases, mostly 
cases of citizens against the public administration. This has already been mentioned in previous CVM 
reports  and  in  the  context  of  consistency  of  jurisprudence  above,74  but  it  also  has  consequences  in 
terms  of  efficiency.  This  is  also  a  matter  of  cooperation  between  the  public  administration  and  the 
judiciary – for example, some Member States operate systems of pilot or test cases which once ruled 
on by the courts, serve as the standard reference for the administration. There were no reports of such 
steps being taken, although the HCCJ gave a mandatory interpretation in at least two such cases (See 
section  2.3).  Access  of  state  agencies  to  the  ROLII  database  on  decisions  will  help  as  well,  as  they 

73  http://www.onoratainstanta.ro/indicele-de-performanta.html  
74   SWD(2015) 8 final, p15. 

18 

 
 
                                                            
could  get  information  on  court  practice  in  similar  factual  situations  even  before  litigation.  In  the 
courts, identifying equivalent cases can also be a support role for clerks with legal training; however, 
the draft law that would modernize the status of clerks and create a new category of clerks, the judicial 
clerk that could take over administrative tasks from judges could not be agreed in 2015.75 

Enforcement of court decisions (civil, administrative and criminal) 

The  enforcement  of  court  decisions  is  often  cited  as  a  continuing  problem,  though  statistics  on  the 
effective  enforcement  are  not  available.  Amendments  to  the  civil  code  of  last  year  by  which  court 
judgments  can  be  enforced  directly  by  bailiffs  and  aiming  at  speeding  up  the  procedure,  has  been 
annulled by the Constitutional Court in December.76 Further, there has been an increase in workload in 
non-litigious enforcement cases relating to other enforceable titles, for which bailiffs have to obtain a 
court enforcement order. A national statistic system is one of the elements for ensuring quality control 
of enforcement proceedings.77 Furthermore, introducing  an ICT system for processing debt recovery 
could lower the enforcement costs and speed up enforcement proceedings. More actions are planned in 
the draft Action Plan of the Strategy for the Development of the Judiciary 2015-2020.  

Regarding claims against the state (central or local authorities) or moneys that need to be recovered by 
the State, there remains no global view on effectiveness.78 A legal framework on enforcement of final 
court decisions against public authorities in Romania is in place.  79,80  As a rule it requires that public 
authorities cooperate voluntarily and promptly to ensure the implementation of final court decisions.  
In case of failure, the claimant can resort to execution proceedings in the court with the involvement of 
bailiffs,  while  the  non-compliant  public  authority  can  be  subject  to  sanctions.  In  practice  however 
effective  enforcement  seems  difficult  to  obtain.  Enforcement  of  judgements  such  as  confirmation  of 
invalid building permits remains problematic.81  

Issues in this area have also been  addressed in the framework of the Council of Europe following  a 
number  of  cases  at  the  European  Court  of  Human  Rights.82  The  government  has  had  frequent 
exchanges  with  the  Council  of  Europe  on  different  aspects  of  non-enforcement  or  prolonged  non-
enforcement of court decisions against public authorities in Romania.83 The Romanian authorities have 
recently  established  an  intergovernmental  working  group  with  the  task  of  collecting  statistics, 
identifying  the  necessary  legislative  and  administrative  measures  for  effective  enforcement,  and 
collecting comparative law information in this area.84 

Further, local authorities are often reluctant to start court proceedings to recover proceeds of crimes, 
e.g. fraud or corruption. There has been some progress in the role played by the Court of Accounts in 

75   SWD(2015) 8 final, p18. 
76   This  expected  reduction  of  cases  was  also  mentioned  as  a  positive  development  in  the  report  of  last  year 

(SWD(2015) 8 final, p20).  

77   European  Commission  on  the  efficiency  of  justice  CEPEJ,  Guidelines  for  a  better  implementation  of  the 
existing Council of Europe Recommendation on enforcement, CEPEJ(2009)11REV2 of 17 December 2009. 
78   There is no central authority competent to monitor and coordinate the implementation of final court decisions 
by all public authorities. Each ministry or public authority is responsible to recover or honour its own claims. 
It  seems  also  that  potential  claims  against  the  administration  are  not  always  budgeted  to  allow  for  these 
claims, if they materialise, to be paid within a reasonable time. 

79   Government Ordinance No 22 of 30 January 2002 
80   Law 544/2004 on administrative proceedings; New Code of Civil Procedure, Articles 622, 626 and 617 
81   Source: civil society, public administration, complaints received by the Commission 
82   The cases include the Sacaleanu group of cases concerning failure or delay of the administration in enforcing 
final domestic court decisions; The Ruianu group of cases which concerns failure of domestic authorities to 
assist  the  applicants  in  enforcement  of  final  court  decisions  placing  various  obligations  on  private  parties; 
The  Stungariu  group  of  case  which  mainly  concern  failure  to  enforce  final  court  decisions  ordering  the 
applicants' reinstatements in their posts in public bodies.  

83   The Romanian authorities have submitted Action Plans and additional information on the Sacaleanu group of 

cases in 2012-2014; on the Ruianu group in 2011- 2015 and the Stungariu group in 2012 

84   Note d'information Group d'affaires Sacaleanu c Roumanie, DH-DD (2015)14 

19 

 
 
                                                            
monitoring  better  the  recovery  of  debts  from  administrative  or  criminal  proceeds,  with  examples  of 
launching investigations against the public authorities for failure to start proceedings to recover.   

Relationship with the Bar   

Discussions between the Commission and the National Bar of Romania, the Bar of Bucharest and the 
Bar of Timisoara report an improvement in the institutional relations with the SCM, the courts and the 
Ministry of Justice.  There have been 15 regional conferences between judges and lawyers, to discuss 
practical issues regarding court organization and proceedings. Judges and prosecutors from the SCM 
have participated in the Bar councils and the Bar Association has been involved in National Institute 
for  the  Magistracy  seminars  on  ethical  issues.  Lawyers  have  been  given  access  to  IT  court  systems 
with a password.  

Integrity within the judiciary 

Integrity within the judiciary is a particularly important test of the management of the magistracy. The 
judicial management is aware of the risks of corruption, the reputational damage and the importance of 
dissuasive action.  
Since  January  2015,  DNA  has  indicted  5  judges,  1  Chief  Prosecutor  (DIICOT)  and  7  prosecutors.85 
The Courts ruled final conviction decisions against 6 judges (including 1 member of the SCM, 1 judge 
of  the  HCCJ  and  2  presidents  of  a  court)  and  11  prosecutors  (including  3  DIICOT  prosecutors,  1 
prosecutor from the Prosecutor’s Office attached to the HCCJ, and 4 chief prosecutors). 

DNA  reports  that  there  had  now  been  a  reduction  in  the  number  of  complaints  and  new  cases  of 
corruption  in  the  judiciary.    Given  the  overall  trend  of  increased  signals  to  DNA  as  a  whole,  they 
considered that this implied fewer examples of corruption in the magistracy, and a reduced tolerance 
for corruption within the system (with an increase in the number of cases of judges reported by their 
colleagues). DNA also noted that cases were now more likely in areas where legal uncertainty offered 
scope for less obvious forms of corruption.  

The  SCM  is  responsible  for  ensuring  that  there  are  no  obstacles  to  the  criminal  investigation  of 
magistrates.  It  has  a  policy  of  "zero  tolerance"  against  corruption  within  the  judiciary  and  this  has 
become a consistent feature in the SCM's public statements. The SCM approved preventive measures 
regarding  magistrates,  such  as  pre-trial  detention,  search  and  custody  –  the  numbers  show  a  slight 
increase on 2014. SCM suspended from duty in 2015 11 judges and 12 prosecutors.  

In  this  respect,  studies  point  to  the  importance  that  the  judicial  hierarchy  is  attentive  to  any  risk  of 
integrity  for  judges  and  prosecutors,  and  that  magistrates  receive  proper  guidance  with  regard  to 
impartialities, conflicts of interest or incompatibilities. Studies have concluded to the need for better 
management  systems  (integrity  standards,  clear  codes  of  conduct  and  compliance  management)  to 
encourage the prevention of corruption and promote professional ethics in the magistracy.86  Even if 
the legislation generally provides a sound legal framework, the operational mechanisms in the system 
are  limited  to  the  disciplinary  procedure  and  periodic  assessment.87  The  studies  pointed  to  a  lack  of 
clarity  in  the  regulations  (notably  surrounding  incompatibilities,  but  also  the  definition  of  concepts 
such as "affecting the good reputation of the judiciary"), as well as in the approach taken between and 
within  the  Judicial  Inspection,  the  SCM,  and  the  HCCJ.  The  recommendations  included  strong  and 
ongoing ethical training involving case studies, and the availability of ethics counsellors. Ideally, such 
measures might also extend to judicial assistants and clerks. 

85   In 2014, DNA indicted 23 judges (including 4 from the HCCJ), 6 Chief prosecutors and 6 prosecutors for 

corruption within the judiciary. Amongst them 7 judges and 13 prosecutors were convicted. 

86  Criminological study on corruption causes in Romania (2015, Romanian Ministry of Justice and the Ministry 
of  Foreign  Affairs  of  the  Netherlands),  and  Consolidation  of  the  judicial  system  integrity  (2015,  Superior 
Council of Magistracy and the Judicial Council in the Netherlands). 

87    The  integrity  of  a  magistrate  is  part  of  the  periodic  evaluation  report  and  the  results  on  the  whole  judicial 

system are usually approaching 99%. This method has attracted some criticism from civil society.  

20 

 
 
 
                                                            
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.  Since  1  January  2015,  from  6550  referrals  on  disciplinary 
offences  registered,  the  Judicial  Inspection  carried  out  53  disciplinary  actions.  The  reports  of  the 
Judicial Inspection are forwarded to the respective SCM sections, who issued 41 decisions concerning 
judges (accepting 29 cases and rejecting 12) and 8 decisions regarding prosecutors (with 5 acceptances 
and 3 rejections). 

The SCM imposed 32 sanctions to judges and 6 to prosecutors. The  sanctions applied are similar to 
last  year  (warning,  decrease  of  monthly  salary,  suspension  from  office,  moved  to  another  court  and 
exclusion  from  magistracy).    Decisions  were  appealed  in  70  pc  of  cases,  most  of  which  which  are 
pending at the HCCJ.88  

The Judicial Inspection analyses the disciplinary cases and identifies the main causes for disciplinary 
actions in order to help defining preventive measures. For the judges the main causes were poor case 
management,  resulting  in  delays  in  writing  decisions;  failure  to  take  into  account  incompatibilities; 
inappropriate behaviour in private life; and excessive workload.  

2.5 

Key institutions 

Superior Council of Magistracy 

The  Superior  Council  of  the  Magistracy  (SCM)  plays  a  central  role  in  the  Romanian  judicial 
landscape. It brings together both judges and prosecutors. In 2016 there will be SCM elections. These 
are planned in autumn with the new team taking office from January 2017, but it is not clear whether 
the elections will renew all members or only those that finished their six years mandate. Magistrates 
who would like to run for elections can openly campaign, while the SCM is responsible for organising 
the election process. There are 14 elected members chosen by the judges and prosecutors throughout 
the country for six years and representing all levels of courts. There is a system of rotating presidency 
(one judge and one prosecutor) with terms of one year. There are also two members of civil society 
chosen by the Senate, though it is not clear whether these members have any specific contact with civil 
society active in judicial reform.  

The  SCM's  role  in  defending  the  independence  of  the  judiciary  is  its  first  task  under  the  Romanian 
Constitution.89 As well as direct intervention in specific cases (see above), the SCM's responsibilities 
for  appointments  and  disciplinary  proceedings  have  a  direct  bearing  on  judicial  independence.  The 
SCM has also a representation role and a managerial role, through which it plays a key role in driving 
judicial  reform.90  CVM  reports  have  noted  the  SCM's  development  in  its  roles,  taking  on  more 
responsibility  and  leading  more  initiatives.  The  SCM  has  also  developed  transparency  through  the 
web-streaming of the plenum meetings and the publication of its decisions. However magistrates, civil 
society  and  professional  organisations  have  expressed  concerns  that  there  is  a  lack  of  direct 
communication  with  the  SCM  on  its  policies  and  decisions.  Only  after  judges  launched  a  petition, 
eventually signed by more than 1000 magistrates, did the SCM organise a consultation of all general 
assemblies  on  its  project  to  modify  the  appointment,  evaluation  and  promotion  conditions  of 
magistrates. Another example is the preparation of the report on the impact of the new codes: courts 
and other institutions complained that they were not consulted on the drafting or the conclusions.  

National Institute of the Magistracy and National School of Clerks 

The National Institute of the Magistracy (NIM) has played an important role in the development of the 
Romanian  judiciary.  Since  2005,  half  the  entrants  into  the  magistracy  have  undergone  the  initial 
training of the NIM. The Institute also undertakes ongoing training: 70% of magistrates participated to 

88  HCCJ ruled on 7 cases: 4 decisions were maintained and 3 modified with a less severe sanction 
89   Article 133 (1) 
90   SWD(2014) 37 final, p19. 

21 

 
 
                                                            
at least one training in 2014, with many courses targeted at helping the entry into force of the four new 
codes and supporting the unification of jurisprudence and practice. In 2015, NIM has organised 269 in 
service  seminars  for  6.232  participants  namely,  judges,  prosecutors,  personnel  assimilated  to 
magistrates  and  assistant  magistrates.    The  National  School  of  Clerks  (NSC)  received  additional 
funding  in  2015  so  that  it  could  provide  initial  training  for  260  clerks  instead  of  120.91  The  NSC 
intensified  its  continuous  training,  especially  on  the  new  codes.92  The  NSC  organised  trainings  on 
ethics  based  on  an  analysis  of  disciplinary  case-law  against  clerks,  and  seminars  with  the  Judicial 
Inspection on random allocation of cases. 

Judicial Inspection 

The Judicial Inspection is operationally independent and inspectors are independent in their activity, 
although  the  Inspection  reported  some  pressure  to  revert  to  the  former  situation  of  stronger 
dependence  from  the  SCM.  Its  role  goes  beyond  defending  the  independence  of  justice  and  the 
professional reputation of magistrates or investigating professional misbehaviour. For example, it can 
identify structural shortcomings or potential improvements, through horizontal substantive inspections 
in courts and prosecutor's offices.93 Such inspections contribute to identifying diverging practices, to 
improving  management  of  courts  and  management  of  cases.    Over  the  past  year,  this  has  included: 
Looking at the implementation of the legal provisions of the preliminary chamber in courts of appeal 
and the unification of administrative practice in this field; administrative and judicial practice in the 
application by judges of deprivation of liberty; verification of the management of the DIICOT; control 
of cases where prosecutors have decided not to pursue a case; and an inspection on cases concerning 
fraud against EU funds. Some of these, including the last case, led to disciplinary procedures. 

III  

INTEGRITY FRAMEWORK AND THE NATIONAL INTEGRITY AGENCY 

Romania  has  a  comprehensive  framework  for  integrity  for  public  officials,  and  an  independent 
institution  to  help  the  application  of  these  rules  and  to  apply  sanctions  (which  can  be  challenged  in 
court). The integrity framework defines incompatibilities between official positions and situations of 
administrative conflict of interest. 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.  ANI  continued  to  initiate  a  substantial  number  of  cases  in  terms  of  conflicts  of 
interest and incompatibility issues, many of them concerning local politicians.94 The legal framework 
on  incompatibilities  and  the  implementation  of  its  reports,  even  when  confirmed  by  court  decision, 
have  continued  to  be  questioned:  though  ANI  has  also  been  the  subject  of  increasing  interest  from 
other Member States interested in developing their own integrity framework. 

In  its  2015  CVM  report,  the  recommendations  covered  ensuring  that  court  decisions  requiring  the 
suspension from office of parliamentarians are automatically applied by Parliament; implementing 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;  and  exploring 
ways  to  improve  public  acceptance  and  effective  implementation  of  incompatibility  rules  and 
prevention of incompatibility. 

91   The NSC also provides distant learning for clerks recruited via local competitions. 
92   More than 1000 clerks attended centralised courses and more than 2600 local courses. 
93   The Judicial Inspection numbers some 50 magistrates and 40 other staff. A request for 10 extra staff in 2014 

was not granted.  

94   In 2015, 84% of  incompatibility cases, 66% of administrative conflicts of interest cases and 66% of criminal 

conflicts of interests cases concern mayors, deputy mayors, local councillors or county councillors.  

22 

 
 
 
 
                                                            
3.1 

The National Integrity Agency (ANI) and the National Integrity Council (NIC) 

Institutional capacity 
The President of the National Integrity Agency (ANI) resigned in March.95 The Vice-President acted 
as  interim  President:  at  the  end  of  the  year  he  was  appointed  as  President  of  ANI  following  a 
competition organised by the National Integrity Council (NIC) (see also section 2.1). ANI presented 
its  Annual  Activity  Report  to  the  NIC  in  spring.  This  report  is  then  transmitted  to  the  Romanian 
Senate. There is also an annual external audit report on the spending and management activities of the 
agency,  and  this  year's  report  noted  the  effective  implementation  of  most  of  the  previous 
recommendations. The NIC adopted the audit report without recommendations. 

ANI employs 104 people, with an increase of four this year.  There are 44 integrity inspectors, with an 
average caseload of 60 files. The number of files finalised by the agency has increased this year and 
amounts  to  more  than  1,500  files.  ANI  has  reported  increased  cooperation  with  institutions  dealing 
directly with its files: the Wealth Investigation Commissions, the High Court of Cassation and Justice 
(HCCJ),  and  the  General  Prosecution.  ANI  also  benefited  from  support  of  the  Superior  Council  of 
Magistracy (SCM) in improving its handling of cases in court. 

National Integrity Council (NIC) 

The National Integrity Council is the oversight body for ANI. The mandate of the Council expired in 
November  2014.  The  constituent  meeting  of  the  new  Council  took  place  in  February  2015  and  it 
elected the representative of civil society as its President. Other members include the President of the 
association of Romanian communes, a representative of  public officials and representatives from the 
major political parties. Membership of the NIC is a part-time function. The main task of the NIC in 
2015  has  been  the  selection  process  of  the  new  ANI  President.  The  NIC  will  now  have  to  launch 
another competition for a new Vice President.  

As  in  previous  years,  the  NIC  monitored  the  management  activity  of  ANI,  and  also  intervened  to 
defend the legal framework for integrity and to request the application of final decisions.96 Compared 
with previous years, the NIC reported that it had been called upon less frequently to respond to media 
and political pressure on the agency. 

Track record – conflict of interest, unjustified wealth, incompatibility 

In  2015,  ANI's  track  record  was  stable  compared  to  2014.    ANI  finalised  1910  files  and  found  229 
cases  of  incompatibilities,  124  cases  of  administrative  conflicts  of  interests,  63  cases  of  criminal 
conflicts  of  interests,  and  30  cases  of  significant  differences  between  incomes  and  assets.  The  cases 
include  135  mayors,  114  local  counsellors,  71  deputy  mayors  and  48  Members  of  Parliament.  ANI 
notified the prosecution of 25 cases of solid suspicions on committing criminal offences or corruption 
offences.  The  Agency  communicates  its  activity  by  publishing  on  its  internet  page  press  releases 
informing  the  public  about  definitive  and  irrevocable  decisions.97  With  the  support  of  the  SCM,  as 
well  as  judges  from  the  administrative  section  of  the  HCCJ  and  from  the  Wealth  Investigation 
Commission, ANI has also been working at improving the quality of ANI reports. 

A high percentage of ANI decisions are challenged in court – ANI has about 3000 files to defend in 
court – but the confirmation rate of ANI decisions in court is still above 80%. ANI's six legal advisers 
focus their efforts on cases before the HCCJ, (the Administrative Section of the HCCJ is responsible 
for  many  first  instance  or  appeals  in  ANI  cases)  and  before  the  Court  of  Appeal  in  Bucharest.  The 
administrative section of the HCCJ pursued its efforts to speed up the treatment of ANI files (which 
represent some 10% of its workload) and has reduced the deadlines for solutions from 18 to about 9 

95   The former President of ANI has been indicted in a case of abuse of office when he was a member of the 
Commission  for  Restitution  of  Properties.  The  case  is  not  linked  to  his  mandate  at  the  National  Integrity 
Agency. He resigned immediately after the start of the investigation. 

96  www.integritate.eu/Comunicate.aspx?Action=1&Year=2015&Month=10&NewsId=2034&M=NewsV2&PID=20;  
97  http://www.integritate.eu 

23 

 
 
                                                            
months.  Quicker  decisions  and  a  coherent  jurisprudence  should  result  in  swifter  enforcement  of 
incompatibility decisions (sanctions can only be applied when the decision is final and irrevocable). 

One challenge faced by the Agency is the implementation of final court decisions regarding unjustified 
assets or conflict of interests and incompatibilities. Last year ANI set up a monitoring system for final 
decisions  to  assist  implementation.  Final  decisions  are  communicated  to  competent  authorities  for 
appropriate  follow  up,  such  as  asset  confiscation,  removal  from  public  offices  or  the  application  of 
other  types  of  sanctions  in  the  case  of    persons  for  whom  unjustified  assets,  incompatibilities  or 
conflicts  of  interests  have  been  established.98  ANI  also  started  to  apply  contravention  fines  or  even 
notify the prosecution in cases where authorities or institutions refuse or unduly delay the application 
of  decisions  and  sanctions.99  As  a  result  ANI  reports  that  there  is  a  small  progress  in  the 
implementation of final decisions.  

Regarding criminal conflicts of interest, ANI has further developed the cooperation with the General 
Prosecution. Experts from ANI have participated in several regional meetings of prosecutors to help 
streamlining  investigations  and  exchanging  information  on  conflicts  of  interests  in  which  cases  and 
jurisprudence  of  the  HCCJ  were  presented  and  discussed.  The  guidance  service  of  the  General 
Prosecutor's Office regularly draws analyses of the typology of the conflicts of interest cases sent to 
trial. These analyses help the prosecution to identify priority investigation areas. In 2015, prosecution 
services solved 222 cases of conflicts of interests – 36 cases were sent to court.100 Twelve final judicial 
decisions  were  reached:  eight  defendants  were  convicted,  the  court  renounced  enforcing  the  penalty 
against two defendants, and two defendants were acquitted. 

3.2 

Legal Framework and jurisprudence on incompatibilities 

The  philosophy  of  the  rules  on  incompatibilities  is  preventive:  avoiding  conflicts  of  interests  and 
lowering the risk for corruption in the first place. This implies that the law should be clear to everyone 
and that sanctions for incompatibilities and conflict of interest are predictable. In the past there have 
been clear examples of inconsistent court decisions undermining its effectiveness.101  

The  High  Court  of  Cassation  and  Justice  (HCCJ)  plays  a  key  role  in  setting  jurisprudence  in 
incompatibility  cases,  with  hundreds  of  decisions  on  incompatibility  and  conflict  of  interests  cases 
since  2008.  The  Administrative  section  of  the  HCCJ,  recognising  that  there  were  problems  of  non-
unitary  interpretation  at  the  level  of  the  HCCJ  itself,  has  set  up  mechanisms  to  remedy  this:  central 
classification and monitoring of all cases, early detection of incoherence and discussion to agreeing on 
a common interpretation. This analysis of all past cases has been made available to the ANI and will 
be published on the website of the HCCJ. ANI reported that the result was there were no recent cases 
of incoherent decisions in the HCCJ, though inconsistency continued as a problem in lower courts. 

The  work  of  the  HCCJ  has  contributed  to  improved  understanding  of  legal  provisions  by  ANI.  In 
2015,  there  were  a  number  of  important  court  cases  concerning  the  interpretation  of  the 
incompatibility laws, in particular regarding incompatibilities of mayors. ANI's integrity inspectors are 
kept informed, and ANI further intends to make a compendium of all jurisprudence on incompatibility 
decisions. The Ministry of Justice also works closely with ANI on the interpretation of the law and on 
bringing together all laws relating on incompatibilities together on a dedicated website.  

The Ministry of Justice and ANI share the opinion that the difficulties of divergent interpretations of 
the  law  will  be  more  effectively  addressed  through  work  on  a  unified  jurisprudence  than  through  a 
modification of the legal framework. One reason is that integrity legislation in Parliament continued to 
be subject to the same uncertainties as mentioned in previous CVM reports.102 Although none of the 
discussions  have  led  to  the  adoption  of  amendments,  some  have  been  adopted  by  one  of  the  two 

98  SWD(2015) 8 final, p 23 
99  ANI imposed 596 administrative fines, the majority for failure to submit timely assets declarations.  
100  Concerning 42 defendants, among them 16 mayors, 1 local counsellor, 1 hospital medical manager. 
101  COM(2015) 35 final, SWD (2015) 8 final. 
102 COM(2015) 35 final 

24 

 
 
                                                            
Chambers  of  Parliament.103  These  include  amendments  which  would  annul  the  general  three-year 
election ban after being found incompatible, restricting it to a ban to be elected in the same function 
for which the official was found incompatible: this would constitute a major reduction in the effective 
sanction. In a  meeting between the Commission and representatives of the Legal Committees of the 
Senate  and  the  Chamber  of  Deputies  in  November,  Parliamentarians  stated  that  the  parliamentary 
debate will involve the institutions who have to implement the laws and that any amendments would 
need the support of the Minister of Justice, ANI and key other institutions.  

A law removing from the scope of incompatibility the circumstance of mayors sitting on the board of 
Inter-community Development Associations, adopted by the Parliament in 2014 against the opinion of 
ANI and the Minister of Justice, was promulgated by the President in December following a series of 
legal challenges.104   

3.3 

Ex ante checks and prevention activities 

The  electronic  system  PREVENT  aims  at  automatically  detecting  conflict  of  interests  in  public 
procurement  before  the  selection  and  contract  award  procedure.  If  the  system  detects  that  such  a 
conflict  exists,  it  issues  a  warning  to  the  contracting  authority  and  prevents  the  contract  from  being 
awarded until mitigation measures are in place.  The first step is  an electronic check alone, but in a 
second step a more thorough verification of how the conflict of interest situation has been resolved can 
be triggered by the Agency. The success of the system depends on whether the contracting authorities 
have the obligation  to feed in the system the data that is then subject to the electronic check. In the 
draft  law  approved  by  the  Government,  contracting  authorities  are  obliged  to  submit  such  data  and 
failure to do so automatically generates a warning and must be rectified. PREVENT would apply first 
to  public  procurement  involving  EU  funds,  but  its  application  would  extend  rapidly  to  all  public 
procurement procedures run via the Electronic Public Procurement System (SEAP). The draft law was 
adopted by the government in September and is being discussed in Parliament. 

The system is designed to detect potential conflicts  of interest as defined currently 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%) involve concluding public contracts 
with companies linked to or owned by family members of local officials. According to the draft law, 
PREVENT will cover all contracts within its scope rather than operate via sampling like other ex-ante 
or ex-post existing control mechanisms do. The draft law has been coordinated with other institutions 
responsible  for  public  procurement,  consistent  with  broader  cooperation  between  the  Romanian 
authorities and the European Commission on improving the system of public procurement. PREVENT 
should be ready to start operating as soon as the law is adopted. A budget of 23 million Lei (€5.1m), 
partially  funded  through  EU  funds,  has  been  foreseen.  ANI  plans  to  prioritise  on  disseminating  the 
relevant information about PREVENT and organising trainings for the contracting authorities. 

The development of the PREVENT tool does not remove the need to check and verify more complex 
cases of conflict of interests. Equally, if the system does not detect a conflict of interest situation, it 
does not mean that other ex-ante and ex-post controls are not needed. According to the National Anti-
Corruption  Directorate  (DNA),  and  also  shown  by  cases  brought  to  light  in  2015  in  several 
municipalities, whilst conflict of interests checks such as PREVENT can be a real help in preventing 
corruption, there is also a risk of displacement to other, more sophisticated means of corruption. 

ANI developed prevention and information  activities in 2015. As well as the FAQ on  their website, 
ANI issued more than 1200 opinions (compared with 700 in 2014) providing legislative interpretations 
on a case by case basis, to allow people to avoid potential problems (these opinions, anonymised, are 
made public). ANI is also upgrading its incompatibility guide according to the recent jurisprudence, 
and plans to make a codex with all jurisprudence on incompatibility decisions.  

103 Two proposals modifying art 25 of Law 176/2010 were tacitly adopted by the Chamber of Deputies in May 

and December 2015,  and one concerning art 85 of Law 161/2003 was adopted by the Senate in June. 

104 See Section 2.1 

25 

 
 
                                                            
3.4 

Integrity and the Romanian Parliament 

The  automaticity  with  which  Parliament  implements  final  court  judgments  which  have  upheld 
decisions of the National Integrity Agency (ANI) is an issue that has been regularly raised in previous 
CVM reports.105  

Article 7 of the Statute of Senators and Deputies regulates how the Parliament should proceed when a 
member has been found incompatible. Although the termination of office is automatic on the date the 
decision  of  incompatibility  becomes  final  and  irrevocable,106  other  steps  are  needed  to  put  this  into 
effect. The President of the Chamber has to take note of the termination of the mandate of the Deputy 
or the Senator, and puts the question to the vote of the plenary session of the Chamber by which the 
place of the Deputy or Senator shall become vacant.107 

ANI  continues  to  report  problems  with  the  follow  up  of  its  incompatibilities  decisions  by  the 
Parliament.  In  2015,  there  were  two  cases  of  incompatibility  of  Deputies.  In  the  first  case,  The 
decision  of  ANI  had  been  final  since  the  beginning  of  January  2015  (it  had  not  been  challenged  in 
court). Following several unsuccessful requests by ANI to the Chamber of Deputies to take a decision, 
ANI applied a fine of 2000 RON (€500) to the members of the Legal Committee. Whilst this sparked 
strong public criticism of ANI by some MPs, the Chamber of Deputies did take the decision to declare 
the mandate of the incompatible Deputy vacant in February 2015. In the second case, despite several 
requests of ANI, the Chamber of Deputies has not taken a decision to declare vacant the mandate of 
the  incompatible  Deputy,  although  the  decision  of  ANI  has  been  final  since  the  HCCJ  rejected  the 
appeal on 23 March.108 The incompatible Deputy announced on 16 December that he will resign. 

3.5 

Challenges ahead 

In 2016 ANI will have to process the wealth declarations of all candidates in the local elections (June 
2016) and Parliamentary elections (November 2016). ANI plans to have meetings at local levels with 
those  responsible  for  dealing  with  wealth  declarations,  and  to  provide  guidance  and  information  on 
recurring errors. ANI also intends to step up its awareness campaigns so that all candidates are well 
aware of potential incompatibilities and conflicts of interest.  

The new electoral law expressly states that persons excluded from election through a judicial decision 
cannot  stand  in  elections.109  Candidates  are  also  required  to  present  a  statement  that  they  fulfil  the 
legal  requirements  for  being  nominated.  Subsequently,  there  are  checks  and  the  possibility  for  legal 
challenge for the electoral committees, for the political parties and for the citizens. 

IV. 

TACKLING HIGH-LEVEL CORRUPTION 

Corruption  is  a  deep-seated  societal  question  with  consequences  for  both  governance  and  the 
economy. It is widely recognised as a major issue in Romania, as also evidenced by several perception 
surveys.110  Corruption  was  central  to  the  public  demonstrations  in  the  wake  of  the  tragic  fire  in  a 

105 COM(2015)35 final 
106 Act No 96 of 21 April 2006 on the Statute of Deputies and Senators, Article 7 (2): The termination of office of 
Deputies or Senators due to incompatibility occurs:….c) on the date of the final and irrevocable judgement 
dismissing  the  appeal  against  the  National  Integrity  Agency  report  stating  the  incompatibility;  d)  on  the 
expiry date of the term stipulated in Act No 176/2010 on the integrity in the exercise of public functions and 
dignities, […], from the date of taking knowledge of the evaluation report of the National Integrity Agency, 
unless  within  that  period  the  Deputy  or  Senator  disputed  the  report  at  the  administrative  litigation  court. 
Acknowledgement shall be done by signing the receipt of the National Integrity Agency report by the Deputy 
or Senator concerned or, if they refuse its receipt, by the announcement made by the President of the plenary 
session of the Chamber to which they belong. 

107 Act No 96 of 21 April 2006 on the Statute of Deputies and Senators – Article 7 (4). 
108 The same Deputy is also the subject of a DNA case. 
109 Art.6 of Law 115/2015. The provisions cover all types of judicial procedures which could lead to such a ban.   
110  Flash  Eurobarometer  428:  Businesses’  attitudes 
,  available  at 

towards  corruption 

the  EU 

in 

http://ec.europa.eu/COMMFrontOffice/PublicOpinion/index.cfm/Survey/getSurveyDetail/instruments/FLASH/surveyKy/2084 ;   

26 

 
 
                                                            
Bucharest  night  club,  which  resulted  in  more  than  60  deaths,  amidst  suspicion  that  corruption  had 
contributed  to  insufficient  safety  standards.  Civil  society  have  also  played  an  important  part  in 
highlighting corruption: A new initiative from civil society in the wake of the demonstrations involved 
listing all elected officials investigated for corruption per city and political party, including MPs.111 

Recent  CVM  reports  have  been  able  to  point  to  a  growing  track  record  in  terms  of  investigating, 
prosecuting  and  deciding  upon  high-level  corruption  cases.  Investigations  of  the  National  Anti-
corruption Directorate (DNA) and corruption trials have shown that public figures and politicians of 
all parties are involved in corruption crimes.   

The investigations of the last three years have revealed important political corruption at local level. In 
40  out  of  the  110  major  cities,  the  mayors  are  under  investigation  or  have  been  sentenced  for 
corruption. For example, in Bucharest, the mayor of Bucharest and the mayors of the 1th, 4th and 5th 
districts are under investigation for corruption, while the former mayor of the 6th district was sentenced 
to eight years of prison in 2014. More than half of the Presidents of the County Councils (24 out of 41) 
are under investigation for corruption.112 Examples of the kind of transgressions involved are abuse of 
public function, by-passing public procurement rules, and obtaining favours.   

4.1 

Legal framework  

As  mentioned in last year's CVM report,  the new Criminal Code and Code for Criminal Procedures 
provide  a  clearer  framework  for  fighting  against  corruption.113  This  has  also  been  confirmed  by  a 
report adopted in April 2015 by the Group of States against Corruption (GRECO). GRECO published 
the  interim  evaluation  of  Romania  that  assesses  the  implementation  of  past  recommendations  with 
regard to incrimination of corruption crimes in line with the standards established by the Council of 
Europe  anti-corruption  instruments.114  The  report  concludes  that  the  entry  into  force  of  the  new 
criminal codes has meant that four out of seven recommendations have been satisfactorily met, with 
three  on  the  incrimination  of  corruption  crimes  are  only  partially  addressed.115  The  fourth  GRECO 
Evaluation Round took place in 2014 about the themes of integrity of the members of parliament and 
integrity of judges and prosecutors.116  

The issues with the stability of the Criminal Code and Code for Criminal Procedure Codes described 
in  section  2.2  also  apply  to  the  legal  framework  for  the  fight  against  corruption.  Some  of  the 
amendments  discussed  in  Parliament  were  criticised  by  the  anti-corruption  authorities  as  weakening 
the  effectiveness  of  the  fight  against  corruption.  However,  such  amendments  have  not  passed  in 
Parliament.  

4.2 

High Court of Cassation and Justice (HCCJ) 

According to the new Code of Criminal Procedures, the High Court of Cassation and Justice (HCCJ) 
is  competent  for  first  instance  and  appeal  trials  for  offences  committed  by  Senators,  Deputies, 
Government  members,  judges  of  the  Constitutional  Court,  members  of  the  Superior  Council  of 
Magistracy, judges of the HCCJ  and prosecutors of the Prosecutor's office attached  to the HCCJ. In 
final  instance,  the  HCCJ  judges  appeals  against  the  Court  of  Appeals'  decisions  for  offences 
committed  (among  others)  by  councillors,  public  notaries,  bailiffs,  public  auditors,  judges  of 
Judicatorie, Tribunalele and Courts of Appeal and prosecutors from offices attached to these courts. 

111 http://initiativaromania.ro/demisia/corupti/primarii-si-consilii-judetene?oras_id=403 
112 http://stirileprotv.ro/special/cj-a-ajuns-sa-nu-mai-insemne-consiliu-judetean-ci-judecat-harta-sefilor-de-judet-cu-probleme-penale.html 
113 SWD (2015) 8 final, p28 
114  Council  of  Europe  Criminal  Law  Convention  on  Corruption  (1999)  and  its  Additional  Protocol  (2003); 
Guiding Principle 2 of the observance of the Guiding Principles for the Fight against corruption as adopted 
by the Committee of Ministers of the Council of Europe on 6 November 1997. 

115 http://www.coe.int/t/dghl/monitoring/greco/evaluations/round3/2nd%20RC3/Greco%20RC3%282014%2922_Romania_2ndRC_EN.pdf 
      The interim report published in December 2015 confirms this conclusions as regards incriminations: 
     http://www.coe.int/t/dghl/monitoring/greco/evaluations/round3/GrecoRC3(2015)13_Interim_Romania_EN.pdf. 
116 http://www.coe.int/t/dghl/monitoring/greco/default_en.asp 

27 

 
 
                                                            
Institutional Capacity 

A consequence of the new criminal codes is that there is a decrease in the number of cases reaching 
the HCCJ, with the intention that the HCCJ can thereby focus on its constitutional  role of cassation 
and interpretation of the law. This is also the case for the criminal section, but if there are fewer small 
cases,  the  complexity  of  the  high-level  corruption  cases  is  huge,  often  involving  a  high  number  of 
witnesses  or  several  defendants.  The  first  instance  decisions  are  taken  by  three-judge  panels  in  the 
criminal section, and appeals are decided by five panel judges (judges from the criminal section plus 
the  President  of  the  HCCJ  or  the  President  of  the  Criminal  Section).  The  preliminary  court  phase, 
judge of rights and liberties and the preliminary chamber, is also taken care of by the criminal section 
judges. The criminal section has 35 judge posts, but about 5 are vacant. Early in 2015, the HCCJ had 
difficulties  in  organising  sufficient  participation  given  the  different  roles  of  the  judge  in  the 
preliminary chamber and in the trial phase, but found a solution. 

Track record 

The HCCJ track record on tackling high-level corruption cases has been maintained throughout 2015, 
with a scale of cases for 2015 comparable to previous years. In  2015 the Penal Chamber  settled, at 
first instance, 11 high-level corruption cases and the panels of five judges settled, as final instance, 11 
high-level corruption cases. Even in cases with a high number of witnesses and complex evidence, the 
HCCJ  judges  have  underlined  their  efforts  to  ensure  respect  of  procedural  rights  for  all  parties. 
Proceedings  have  also  been  kept  relatively  short:  the  majority  of  cases  were  registered  in  2014  and 
2015, while the oldest case goes back to 2011.  Amongst the high profile defendants convicted were 
those  who  had  served  in  the  positions  of  Ministers,  Members  of  Parliament,  Mayors,  judges  and 
prosecutors.117 

4.3 

The National Anti-Corruption Directorate  

The  National  Anti-corruption  Directorate  (DNA)  investigates  high  and  medium  level  corruption.118 
Because  of  its  consistent  non-partisan  track  record,  DNA  continues  to  enjoy  a  very  high  support  in 
public opinion.119 

Institutional capacity 

The  number  of  DNA  cases  continues  to  increase.  DNA  registered  more  than  7000  new  cases  in 
2015.120  In  2014,  DNA  finalised  4500  cases  but  at  the  end  of  the  year  there  were  still  3500  cases 
pending.  There  is  an  obligation  to  deal  with  all  cases;  prosecutors  cannot  invoke  the  opportunity 
principle because there is a public interest in fighting corruption. The use of plea bargaining is limited 
by law, as it can only be used in cases involving small amounts of money. Therefore the workload per 
prosecutor is very high: about 100 cases per prosecutor in team with two police officers. 

In  2014,  the  government  budget  financed  50  more  posts  for  DNA  judicial  police  officers:  DNA 
reported  that this had been  particularly valuable in the identification of criminal assets. In  2015, the 
government also reinforced DNA with 50 additional posts of prosecutors and 55 additional posts for 
support  staff.121  Although  the  Public  Ministry  budget  for  2016  has  been  reduced  overall  by  10  %, 
DNA's  share  will  increase:  an  extra  €1million  euro for  equipment  and  support  to  move  into  another 

117 2 Ministers, 1 MP, 1 Mayor, 4 judges, 8 prosecutors, President of RO Chamber of Commerce 
118  The  law  establishes  three  criteria  for  medium  and  high  level  corruption:  the  amount  of  bribes  or  undue 
benefits  exceeds  €10,000;  the  damage  caused  exceeds  €200,000;  corruption  offenses  are  committed 
(regardless of the amount) by people who occupy important positions such as Deputies, Senators, members 
of  Government,  State  Secretaries,  prosecutors  and  judges,  officers,  admirals,  generals,  mayors  and  deputy 
mayors,  presidents or deputies of county councils, county councillors, prefects and sub-prefects. 

119 Polling of November 2015 shows 61% very high to high confidence in DNA    
http://adevarul.ro/assets/adevarul.ro/MRImage/2015/12/21/56782d9f37115986c6ad7682/orig.jpg 

120  DNA  reports  that  85  to  90  %  of  cases  originate  from  citizens'  complaints,  5  to  10%  are  ex-officio  or 
complaints from  other  institutions  and  less  than  5%  of  cases  originate  from  notification  of  the  intelligence 
services. The Number of signals from citizens increased by 14% in 2015. 

121 Government Decision 486 of 30 June 2015 

28 

 
 
                                                            
building. Both DNA and the Prosecutor General report that the collaboration is good. Regularly, files 
initiated  by  a  prosecutor's  office  are  transferred  to  DNA  if  it  is  found  that  they  fall  under  DNA 
competence. The Prosecutor General supports DNA in requests to Parliament for preventive measures 
against MPs or (ex-)ministers. Cooperation with other government agencies is varied.122 

The  activity  of  the  DNA  territorial  structures  has  increased,  with  more  investigations  of  important 
local figures. During a Commission visit to Timişoara, the DNA local branch presented examples of 
serious cases of corruption based on complex networks, involving both illegal political party funding 
and  personal  enrichment  and  resulting  in  a  substantial  number  of  convictions  of  high  ranking  local 
officials.  

The DNA does not have its own capacity for wiretapping or surveillance measures. For this it relies on 
the  technical  support  of  the  Romanian  Intelligence  Service  (SRI),  as  acknowledged  in  DNA  press 
releases.  When  performing  wiretapping  for  DNA,  the  SRI  personnel  works  under  the  authority  of  a 
prosecutor,  in  turn  under  the  control  of  a  judge.  The  SRI  does  not  itself  gather  evidence  for  DNA 
cases.123  Nevertheless  this  situation  has  been  the  source  of  public  concern:  the  creation  of  an 
autonomous capacity in the prosecution for wiretapping and surveillance was one of the demands of 
civil society in the November demonstrations.  

Track record  

DNA  maintained  its  track  record  on  conducting  investigations  of  high  and  medium  level  corruption 
cases throughout 2015.  In 2015, 357 cases were sent to trial, regarding 1258 defendants.124  Despite 
the  high  workload,  DNA  completed  investigations  within  reasonable  deadlines,  with  many  cases 
started in 2015 and sent to trial the same year. Amongst the high profile defendants, DNA has indicted 
the  Prime  Minister,  17  Members  of  Parliament  (including  two  former  Ministers),  two  former 
Ministers,  one  Constitutional  Court  judge,  4  State  Secretaries,  21  mayors  and  7  deputy-mayors,  11 
presidents  of  county  councils  and  23  local  councillors,  the  President  of  the  National  Audio-Visual 
Council,  the  President  of  the  National  Agency  for  Food  safety,  the  President  of  the  Chamber  of 
Commerce  and  Industry,  the  President  of  the  National  Integrity  Agency  and  the  President  of  the 
National  Authority  for  the  Restitution  of  properties,  37  directors  of  public  agencies,  authorities  and 
companies. Five judges have been indicted as well as two Chief prosecutors and six prosecutors.125  

In order to recover the damages caused by the offences or to ensure the confiscation of the proceeds of 
corruption  crimes,  DNA  prosecutors  ordered  interim  seizures  measures  in  the  cases  sent  to  trial  for 
money and goods worth about €452 million. In four cases DNA made use of extended confiscation, 
but  in  accordance  with  a  Constitutional  Court  ruling  of  January  2015,  those  procedures  cannot  be 
applied retroactively and can only cover assets obtained after 2012.126 

The high-level corruption cases are judged by the High Court of Cassation and Justice and the Courts 
of  Appeal,  as  described  above.  For  all  other  corruption  cases  investigated  by  DNA,  the  Tribunalele 
(tribunals)  are  the  competent  first  instance  court,  unless  assigned  by  law  under  the  jurisdiction  of  a 
higher court. This means that the large majority of DNA corruption cases are judged by Tribunalele 
(first  instance)  and  Appeal  courts  (final  instance).  During  the  reference  period,  302  final  conviction 
decisions were ruled in corruption cases against 973 defendants (a little less than in 2014)127. DNA has 
secured convictions in a high proportion of cases (the acquittal rate is about 10% for DNA cases). 

122 DNA reports that very few notifications were received from the agency controlling public procurement. 
123  Art  102  of  the  Code  of  Criminal  Procedure  states  that  evidence  obtained  unlawfully  and  evidence  directly 

derived from it cannot be used in criminal proceedings.  

124 59 of these defendants were indicted with plea bargain agreements. 
125 The approval of the Superior Council of Magistracy is necessary for search and arrest: it has been granted in 

all cases. 

126 Decision n°11 of 15 January 2015 
127  351  punishments  with  execution  (36%),  222  punishments  with  the  conditioned  suspension  of  execution 
(23%),  389  punishments  with  suspension  under  surveillance  of  execution  (40%),  11  punishments  with  the 
postponing of enforcement of the punishment during the surveillance term (less than 1%) 

29 

 
 
                                                            
In  the  cases  with  final  conviction  decisions  during  the  reference  period,  the  courts  ruled  the 
confiscation of the total sum of approximately €29.6 million, as well as of a large number of movable 
goods. Compensation ordered to civil parties amounted at €177 million, with €160 million of this for 
public authorities and state owned enterprises. DNA has started a closer monitoring of the follow-up 
of confiscation decisions and has as yet found no improvement in the effective amounts recovered. In 
one  major  case  where  a  final  decision  had  been  ruled  in  January  2015,  by  November  no  action  had 
been taken yet by the Fiscal Administration (ANAF) with regard to the three buildings that the court 
had ruled should be seized.  

To ensure a consistent approach in court, DNA has changed its internal organisation so that the same 
prosecutor  attends  a  given  panel.  DNA  reports  that  relations  with  the  High  Court  and  the  Court  of 
Appeal  in  Bucharest  are  good.  In  some  other  Courts  of  Appeal  or  tribunals  DNA  has  encountered 
problems, in part due to a lack of experience with difficult or complex cases. One difficulty during the 
trials  reported  by  DNA  is  that  it  cannot  use  in-house  DNA  experts.  The  Code  for  Criminal 
Proceedings  makes  it  mandatory  to  order  an  independent  expert  report,  which  DNA  considers 
unnecessarily increases costs and time.128 

4.4 

Parliament and the fight against high-level corruption 

The  parliamentary  procedures  for  the  lifting  of  immunity  with  respect  to  starting  investigations, 
search, arrest and detention measure has been an issue raised in previous CVM reports.129 2015 also 
saw examples of apparent inconsistencies in the response given to requests from the prosecution to lift 
the immunities of MPs. The criteria on which requests are accepted or rejected remain unclear and are 
not communicated to the prosecution.  In most cases, the Parliament respected the deadlines for taking 
a decision. 

During  2015,  DNA  prosecutors  made  14  requests  to  the  Parliament  for  pre-trial  detention  on 
corruption grounds (regarding 6 Deputies, 2 Senators and 1 judge of the Constitutional Court): 9 were 
admitted  (4  by  the  Senate,  5  by  the  Chamber  of  Deputies);  4  were  denied  (3  by  the  Chamber  of 
Deputies, 1 by the Senate); 1 request becamee void after the resignation of the Deputy. Nine requests 
were also made for approval to start investigations on corruption grounds, concerning the incumbent 
Prime Minister, one Minister and 3 former Ministers: 6 were admitted (4 by the Chamber of Deputies, 
2  by  the  Senate);  3  were  denied  by  the  Chamber  of  Deputies  (including  the  request  concerning  the 
incumbent Prime Minister). 

In  some  cases,  the  refusals  of  lifting  of  immunity  created  considerable  controversy,  sparking 
comments  both  in  Parliament  and  outside  (notably,  by  the  President  of  Romania).  There  was  also  a 
referral  to  the  Constitutional  Court  (see  section  2.1)  which  did  not  change  the  result  of  the  vote  but 
required the Senate to change its rules on voting.  
The  Venice  Commission  issued  a  Report130  on  the  scope  and  lifting  of  parliamentary  immunities  in 
which  it  notes  "that  inviolability  against  arrest,  detention,  investigation  and  prosecution  in  cases 
where  there  is  an  alleged  criminal  offence  is  the  most  problematic  and  controversial  part  of  the 
concept  of  parliamentary  immunity".  The  Venice  Commission  considers  that  "national  rules  on 
parliamentary inviolability and its lifting should be subject to critical review and reassessment. Such 
rules  may  still  be  legitimate,  but  they  are  not  a  necessary  part  of  a  well-functioning  modern 
democracy, and they can be misused in ways that may undermine democracy, infringe the rule of law 
and  obstruct  the  course  of  justice.  To  the  extent  that  national  rules  on  inviolability  are  maintained, 
they should therefore be regulated in a restrictive manner, and it should always be possible to lift such 
immunity,  following  clear  and  impartial  procedures.  Inviolability,  if  applied,  should  be  lifted  unless 
when this is justified  with reference to the case at hand and proportional and necessary in order to 
protect the democratic workings of parliament and the rights of the political opposition". 

128 An amendment of this provision is part of the package pending in Parliament. 
129 COM(2015)38 final, COM(2014) 37 final, COM(2013) 47 final 
130 CDL-AD(2014)011 of 14 May 2014 

30 

 
 
                                                            
A second issue that has been raised previously is 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.131  In  the 
aftermath of the Presidential elections, there were proposals from two main political parties in spring 
2015 to modify the party status sanctioning members that are involved in corruption proceedings.132  

V  

TACKLING CORRUPTION AT ALL LEVELS 

5.1 

The extent of corruption  

The fourth CVM benchmark invites the Romanian authorities to take further measures to prevent and 
fight  against  corruption,  in  particular  within  local  government.  Medium  and  low-level  corruption  is 
widely perceived to be endemic and affects everyday life of all social classes, with consequences for 
the  economy  and  for  governance.  Some  cases  are  on  a  large  scale,  with  significant  financial  and 
societal  damages  (but  without  necessarily  involving  high  ranking  politicians  or  office  holders). 
Corruption  represents  a  reputational  risk  for  the  country  and,  as other  forms  of  corruption,  acts  as  a 
deterrent  for  foreign  investment.  A  recent  Eurobarometer  targeting  businesses  found  that  74%  of 
business representatives consider that corruption is a problem for their company when doing business 
in  Romania,  while  70%  say  that  patronage  and  nepotism  are  a  problem.133    The  recent  fire  in  a 
Bucharest  nightclub  was  also  seen  as  revealing  the  potentially  tragic  consequences  of  local 
corruption,134 and sparked widespread street protests.  

There  is  also  an  increasing  recognition  by  public  institutions  that  corruption  is  widespread  and  is 
affecting Romania's development.135 It played a major role in the election campaign of the  President 
of  Romania  in  2014.  In  a  recent  interview,  the  Prosecutor-General,  reiterated  that  corruption  is 
widespread.136  To underline the priority given to the fight against corruption, the Prosecutor-General 
has  organised  a  yearly  national  competition  concerning  the  fight  against  corruption,  gathering 
prosecutors  from  courts  around  the  country.  The  need  to  step  up  preventive  measures  has  also  been 
highlighted by the Chief Prosecutor of the National Anti-corruption Directorate, who emphasised that 
prosecution alone cannot resolve the problem. 

As evidenced in previous CVM reports, the fight against general corruption relies on a mix of robust 
prevention  measures,  education  to  change  the  perception  that  bribes  or  "informal  payments"  are  the 
only way to obtain a service, and effective controls, as well as dissuasive and enforced sanctions.  

5.2 

Corruption prevention 

National Anticorruption Strategy (NAS) 

The previous CVM report recommended using the National Anti-Corruption Strategy (NAS) 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.137 The NAS 2012-2015 was 

131 COM(2015) 35 final, p10; SWD(2015) 8 final, p26 
132 PSD and PNL 
133 Flash Eurobarometer 428: Businesses’ attitudes towards corruption in the EU , available at 

http://ec.europa.eu/COMMFrontOffice/PublicOpinion/index.cfm/Survey/getSurveyDetail/instruments/FLASH/surveyKy/2084  

134  The  investigation  following  the  tragedy  at  the  "Collectiv  Club",  where  63  people  died  in  a  fire,  relates  to 

possible corruption in relation to the attribution of the operating licence. 

135 For example, in its 2014 annual activity report, the Romanian Intelligence Service noted the economic cost of 
administration. 
issues 

corruption 
by 
http://www.cameradeputatilor.ro/bp/docs/F-362277298/RaportSRI2014.pdf 

particular 

public 

faced 

and 

the 

136 He noted in particular the risks to local administration, with particular reference to public procurement or the 
attribution  of  permits  (for  example  building),  underlining  that  this  was  not  unique  to  Romania.  
http://internacional.elpais.com/internacional/2015/11/03/actualidad/1446582315_502527.html  

137 COM(2015) 35 final, p13 

31 

 
 
 
                                                            
designed  to  set  up  corruption  prevention  measures  in  all  public  institutions;  each  participating 
institution  identifying  its  own  corruption  risks  and  its  own  corruption  prevention  measures.  The 
measures  and  their  implementation  were  reviewed  through  a  peer  review  process,  with  specific 
recommendations  and  best  practices  identified.  The  Ministry  of  Justice  coordinates  at  national  level 
and is supported in the peer review process by NGOs, and by the Anti-Corruption Directorate General 
(DGA).  In  2015,  the  activities  under  the  NAS  have  continued  as  scheduled,  with  regular  reporting, 
peer review missions in public institutions and meetings of the cooperation platforms.  

At the Ministry for Regional Development and Public Administration (MRDAP), initiatives have been 
taken  to  define  measures  aimed  at  assisting  local  government  in  the  implementation  of  the  NAS,  at 
increasing  the  capacity  to  implement  preventive  measures,  at  raising  corruption  awareness  at  local 
levels and at strengthening integrity, efficiency and transparency.138 Nevertheless, the NAS evaluation 
results  suggest  that  progress  is  slow.  At  the  level  of  local  administration  knowledge  about  relevant 
anti-corruption,  conflict  of  interests  and  incompatibilities  legislation  is  poor  and  preventive  and 
control administrative procedures are largely missing. 

A general review of the NAS performed in view of extending the strategy beyond 2015 shows that the 
strategy  has  started  to  produce  positive  results  and  has  stimulated  a  reflection  on  the  drivers  of 
corruption  and  the  exchanges  of  best  practices.  However  it  also  concludes  that,  if  the  corruption 
prevention  measures  have  been  put  in  place,  their  application  is  more  piecemeal,  due  to  insufficient 
capacity of the institutions, lack of knowledge and expertise of the staff, and lack of political will from 
the  top  of  the  institutions.  Prevention  and  education  are  still  lagging  behind  the  record  of  law 
enforcement institutions in combating corruption. The review therefore recommended maintaining the 
approach and pursuing it for another two years (until 2017), but focusing efforts on achieving better 
results  in  terms  of  prevention  and  education,  and  on  establishing  on  establishing  effective  control 
bodies  inside  public  institutions  with  the  necessary  human  and  material  resources,  with  a  focus  on 
local  public  administration.  Other  areas  highlighted  to  be  strengthened  are  the  application  of 
whistleblower  protection  rules  to  encourage  whistleblowing  and  a  more  effective  oversight  of  how 
"revolving doors rules" are being applied. 

The  Ministry  of  Justice  will  conduct  in  the  first  quarter  of  2016  inter-institutional  consultations  and 
public debates to assess the impact of the NAS so far. The result will be a new policy document to be 
adopted  by  the  Government  and  endorsed  by  main  stakeholders  such  as  Parliament,  Judiciary, 
businesses, civil society and local administration. The expected timeframe for adoption is first half of 
2016.    The  new  policy  will  seek  to  preserve  best  practices  and  focus  on  national  priorities  such  as 
implementation  of  PREVENT  system,  establishment  of  the  new  National  Agency  for  the 
Administration  of  Seized  Assets  and  seek  to  address  the  shortcomings  identified  during  the  review 
process. 

Anti-corruption General Directorate (DGA)  

In  2015  the  Anti-Corruption  General  Directorate  (DGA)  within  the  Ministry  of  Internal  Affairs 
(MoIA)  has  been  active  in  promoting  preventive  measures  such  as  anti-corruption  information 
activities,139  prevention  and  informing  training  sessions,140  guides  for  the  citizens,141  and  research 
studies. The DGA has a specialised department that analyses all cases of corruption in order to define 

138 The project "Strategic approach in the field of anticorruption at the level of the MRDPA”, implemented in 
partnership with the Association for Implementing Democracy, co-financed from the European Social Fund. 
139 One activity was about elaborating and disseminating the Best practice Guide for preventing and countering 
corruption,  within  a  project  funded  by  the  European  Commission  “United  against  corruption”,  aiming  at 
preventing and countering corruption in Romania, Bulgaria and Latvia  

140  DGA  organised  over  3,500  prevention  and  informing  training  sessions  for  MoIA  personnel.  In  161  cases 
DGA was notified, by MoIA officers, of bribe attempts they had experienced, and there were 70 cases raised 
where MoIA colleagues had allegedly been involved in corruption deeds. 

141  A  recent  information  guide  for  citizens  on  the  MoIA  provides  lists  of  documents  necessary  to  obtain  an 
administrative act and details the types of corruption crimes that could be committed both by public officials 
and citizens: http://www.mai-dga.ro/downloads/engleza/Prevenire/Ghid_informare_en.pdf.  

32 

 
 
                                                            
measures  to  be  taken  to  prevent  similar  cases.  On  this  basis  DGA  further  defines  new  training  and 
control  measures.  Over  the  years  DGA  has  built  an  expertise  in  corruption  prevention  and  control 
which DGA could share with other institutions in view of reinforcing the NAS. 

Role of civil society 

CVM  reports  have  constantly  recognised  the  importance  of  civil  society  in  documenting  and 
highlighting  corruption  problems  and  in  providing  support  and  expertise  to  concrete  anticorruption 
projects.  Examples  in  2015  include  analysis  of  the  National  Anticorruption  Strategy;142  projects 
around the country to prevent corruption in public administration and public procurement;143 looking 
at the re-use for social purposes of confiscated assets in context of discussions on the draft law for the 
new  Asset  Management  Agency144;  and  corruption  in  healthcare.145  Specialised  NGOs  closely 
monitored the process for the appointment of the Chief Prosecutor of the Directorate for Investigation 
of Terrorism and Organised Crime (DIICOT),146 and have made clear their intention to scrutinise the 
key  appointments  due  in  2016.  Other  issues  of  concern  raised  by  NGOs  have  been  risk  areas  for 
corruption such as urban planning (licences for building), and state-owned-enterprises.  

5.3 

Investigation – prosecution and court practice 

General  corruption  cases  are  investigated  both  by  the  National  Anti-corruption  Directorate  (DNA) 
(medium-level) and by the General Prosecution (low-level).147  There is not always a clear separation 
between high-level, medium-level and low-level corruption. Isolated cases of small bribes may appear 
as low level corruption but taken together with other similar cases in the same administration might 
bring  up  patterns  of  well  organised  schemes  feeding  into  high-level  corruption.  The  General 
Prosecution  and  the  DNA  collaborate  so  that  cases  initiated  as  low-level  corruption  are  later 
transferred  to DNA if it appears during  the investigation  that these fall within  DNA competence. In 
2015, 785 cases were re-attributed to DNA and in 470 of those, the DNA competence appeared after 
the prosecutors had already taken the investigation a long way.   

Prosecution services throughout the country 

The  Prosecutor-General  has  made  the  fight  against  corruption  a  priority.  In  2015  the  General 
Prosecution dealt with a large number of low-level corruption cases: 2321 cases were resolved, out of 
which  344  files  involving  903  defendants  were  sent  to  court  (310  bills  of  indictment  and  34  plea 
bargains).148  These cases cover a large spectrum including education,149 health,150 police,151 local and 
central  public  administration  and  state  owned  companies.152  The  guidance  service  of  the  Prosecutor 
General  makes  an  analysis  of  the  typology  of  those  corruption  cases,  in  order  to  prioritise  the 
prosecution work and provide guidance in risk assessment.  

In 2015 the General Prosecution was reinforced with anti-fraud personnel, though in 2016, the DNA's 
recruitment of 50 prosecutors will naturally draw on experience in the General Prosecution, and there 
is a risk of lost expertise.  In 2015, the Prosecutor’s Office attached to the High Court of Cassation and 
Justice  organized  four  professional  regional  meetings,  under  the  title  “Investigating  crimes  of 
corruption  and  the  crime  of  conflict  of  interests”,  where  prosecutors  have  presented  relevant  cases 

142  The NGO "Funky Citizens": http://www.onoratainstanta.ro/analize.html  
143  Freedom House and Expert Forum – see for example http://www.justitiecurata.ro/  
144  Centre for Legal Resources 
145  Association for the Implementation of Democracy 
146  5 NGO s (Grupul pentru Dialog Social,  Freedom House Romania, Expert Forum, Institutul pentru Politici 
Publice,Centrul Roman pentru Politici Europene ) have sent an open letter to the Minister of Justice asking 
for a transparent procedure, with clear and public selection criteria.  

147  See previous section for DNA's competence. 
148  An slight increase compared to 2014 
149  Professors, Teachers, headmasters, school inspectors 
150  Physicians, hospital managers. 
151  Police workers, border police agents, and also 12 mayors.  
152  Results obtained in the prosecution of criminal conflicts of interests are detailed in Section 0. 

33 

 
 
                                                            
solved by all territorial structures. The purpose of such meetings is to exchange experience about the 
investigation  of  corruption  cases.  All  cases  presented  at  the  regional  and  national  anti-corruption 
competitions underlined the importance of teamwork amongst law enforcement authorities.  

The General Prosecution does not have its own judicial police. The Prosecutor General has set up a 
few teams in which the judicial police and anti-fraud inspectors worked closely with the prosecutor. 
These  experiences  have  led  to  better  results  in  terms  of  investigation  and  assets  confiscation,  and 
Prosecutor  General  has  concluded  that  a  dedicated  judicial  police  would  bring  added  value.  The 
Romanian Police has established as a priority the prevention and fight against corruption in all fields, 
acting mainly in the areas of health, education, public administration, as well as in the investigation of 
public  procurement  fraud  linked  to  corruption.  The  Police  also  works  with  ANI  to  identify  and 
investigate cases of conflict of interests, usually under the supervision and coordination of prosecutors 
within the Prosecutor’s Offices attached to the Courts of Appeal. 

In countering corruption, DGA judicial police officers conducted investigations and forwarded to the 
Prosecution a total of 3000 penal files, out of which 1,467 were initiated ex-officio. Criminal pursuit 
was  initiated  in  2,471  penal  files,  indictments  were  issued  in  403  files  and  admission  of  guilt 
statements were concluded in 41 files. The Prosecution issued 3,399 delegation ordinances for DGA’s 
judiciary  police  officers  to  conduct  investigations.153  The  DGA  and  the  Prosecutor  General  issued  a 
new edition of the Best practices Guide for Investigating Corruption Offences. 

Court practice 

According to the General Prosecution, 242 final court decisions were issued in corruption cases (the 
number  of  final  court  decisions  doubled  compared  to  2014),  with  313  defendants  convicted  and  7 
defendants  fully  acquitted  –  though  the  figure  for  suspended  sentences  remained  high  at  86%.  The 
number of cases solved by using plea-bargaining at the prosecution stage also increased by more than 
20%. The number of convictions has doubled for bribe-taking cases.  

Inconsistencies  in  sentencing  are  still  often  reported,  although  it  is  not  possible  to  ascertain  this 
without  a  thorough  analysis.  In  view  to  reinforce  the  deterrent  effect  of  the  convictions  and  the 
penalties, the Prosecutor General has recommended as a general policy line for prosecutors to check 
consistency of penalties with similar cases and to appeal the decision when the sentence appears too 
low,  especially  when  the  accused  person  is  a  representative  of  a  public  authority  (e.g  policemen, 
public official in the mayor office, professor or management level in the health or educational sector). 

The Minister of Justice had announced steps to modify the law allowing a reduction of sentence for 
intellectual work undertaken in prison. A number of high-profile figures convicted for corruption have 
benefited from this law, amid accusations of plagiarism and ghost-writing of the works they produced. 
These steps did not crystallise into a concrete proposal. 

Confiscation and asset recovery 

As 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.154  The  Romanian  authorities  have  acknowledged  that  the  system  needs  to  be  improved.  The 
2015 CVM report recommended to 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.155  

The amounts seized during prosecution and confiscated by final court orders continued to increase in 
2015.  The  DNA  reports  seizures  for  cases  sent  to  Court  during  2015  of  a  total  amount  of 
approximately €452 million. The confiscated amounts ruled by a final Court decision during the same 
reference  period  for  DNA  cases  were  of  €29.6  million  and  a  large  number  of  movable  goods.  The 

153 614 from the National Anti-corruption Directorate, 122 from DIICOT and 2.663 from other structures of the 

Public Ministry. 

154 COM(2012) 410 final; SWD(2015) 8 final 
155 COM(2015) 35 final, p13 

34 

 
 
                                                            
General prosecution (including DIICOT) ordered provisional measures for more than €460 million in 
tax  evasion  and  money  laundering,  with  in  addition  one  special  case  of  money  laundering  where 
provisional  measures  up  to  €2  billion  were  ordered.  Extended  confiscation  can  be  used  for  assets 
acquired  after  2012  only  and  is  relatively  rarely  used  by  courts,  the  DNA  noting  four  cases  and  the 
Prosecutor's Office attached to the HCCJ one case in 2015. The possibility to introduce non-conviction 
based confiscation is under analysis.  

It remains difficult to have a view on the effective recovery rate to ensure that decisions of the courts 
with financial consequences lead to gains for the public purse, as no reliable statistics  are  available. 
According to a report of the Ministry of Justice, the value of seized assets was of €434 million in in 
2013,  but  that  of  the  assets  effectively  recovered  reached  only  €7.6  million.  Estimates  of  effective 
recoveries are often very low, at about 10%. A national registry of seized and confiscated assets is in 
view but it will take time to set it up and feed the data. As of January 2016, ANAF will have a new 
directorate  general  in  charge  of  recovering  confiscated  assets,  tasked  with  coordinating  enforced 
recoveries across the country. 

In  June  the  government  adopted  a  draft  law  to  set  up  a  National  Agency  for  the  Administration  of 
Seized  Assets,156  which  will  be  responsible  for  managing  frozen  assets  and  for  cooperation  between 
institutions to ensure the effective recovery by the State of the confiscated assets decided by the courts. 
The law was adopted by Parliament in November and promulgated in December.  

The law aims to provide the necessary support to judicial bodies both regarding the management of 
seized  assets  and  their  sale,  where  the  law  allows  for  the  sale  of  property  before  conviction.  The 
agency  will  be  headed  by  a  director  general  (a  magistrate  or  a  judge)  nominated  by  the  Minister  of 
Justice. The main institutions concerned (Ministry of Justice, Fiscal administration (ANAF), Ministry 
of  Internal  Affairs  (MoIA),  DNA,  DIICOT,  Superior  Council  of  Magistracy)  and  some  NGOs  will 
have  strategic  oversight  over  the  agency.  The  agency  can  propose  that  confiscated  assets  may  be 
donated for social re-use to local administrations and NGOs. Funds resulting from the sale of seized 
assets  will  be  distributed  to  institutions  involved  in  fighting  and  prevention  crime.  Funds  resulting 
from the sale of seized assets will be allocated to the Ministry of Education and the Ministry of Health; 
to the Ministry of Internal Affairs and the Public Ministry to civil society organisations and relevant 
universities.157 The agency will also sell non-monetary seizures.158   

According to the implementation plan, the agency should hire 35 persons in its first year, start initial 
operations mid-2016 and become fully operational by the end of 2017.  Once its IT system  becomes 
operational, the new agency should be able to provide data on the rate of executions of confiscation 
and  all  recovery  of  damages  by  ANAF  and  local  administrations  and  all  compensations  to  victims. 
Today the statistics suggest that 80% of seizures come from DNA cases, in spite of the fact that these 
are a small proportion of cases overall.  

The new agency will also take over the Asset Recovery office (ARO) competencies from the Ministry 
of  Justice.  The  exchange  of  data  and  information  with  ARO’s  counterparts  in  other  Member  States 
continued  throughout  2015,  with  140  incoming  requests  and  119  outgoing  requests  (an  increase 
compared to the first 11 months of last year). The Romanian ARO was accepted as a member of the 
CARIN (Camden Assets Recovery Interagency Network) Steering Group.159 

156  The  draft  law  is  in  part  a  response  to  Directive  2014/42/EU  on  the  freezing  and  confiscation  of 

instrumentalities and proceeds of crime in the European Union. 

157  20%  each  to  the  Ministry  of  Education  and  the  Ministry  of  Health;  15%  each  to  the  Ministry  of  Internal 
Affairs,  the  Ministry  of  Justice  and  the  Public  Ministry;  15%  to  civil  society  organisations  and  relevant 
universities 

158  This  will  require  work  on  catalogues  and  instructions  for  objective  evaluation  of  assets  and  the  proper 

housing of seized assets.  

159  It will also assume the presidency of the network in 2019. 

35 

 
 
 
 
                                                            
5.4 

Tackling corruption in different sectors  

Healthcare 

Corruption in the Romanian health care system has been recognised as a particular problem and one 
faced by many Romanian citizens. The main problems relate to public procurement, fraud and passive 
corruption  relating  to  issuance  of  certificates  and  the  practice  of  informal  payments.  Existing 
anticorruption  projects160  in  this  sector  came  to  an  end  in  2015,  though  a  "diagnosis  report"161 
regarding  corruption  in  the  Romanian  healthcare  system  has  been  prepared.  Last  year's  report 
mentioned  the  establishment  of  ethics  councils  within  public  hospitals162  and  a  patient  feedback 
mechanism.163   The sustainability of these anticorruption measures  for the future will  depend on the 
allocation  of  resources:  the  planned  increases  in  staff  for  the  integrity  department  in  the  Ministry 
appear  not  to  have  taken  place,  and  the  department's  findings  have  not  been  used  to  elaborate  and 
implement  a  comprehensive  anti-corruption  sectorial  strategy.  In  addition,  these  structures  and  the 
transparency  requirements  they  bring  does  not  cover  the  work  of  the  national  insurance  structure 
(CNAS), the key financial decision-maker in healthcare, and the National Agency for Drugs, which is 
in charge of a series of key processes concerning drugs.  

A portal for monitoring public procurement contracts in public health units is under way and part of 
the procurement contracts for goods have been centralised at Ministry level,164 which generates budget 
savings  and  may  result  in  a  better  control  and  monitoring.  The  system  of  feedback  from  patients  is 
meant to help identify cases where informal payments are requested but the use of the system seems to 
be  limited  so  far.  The  High  Court  of  Cassation  and  Justice  has  clarified  that  medical  personnel  are 
public  servants,165  facilitating  the  potential  prosecution  of  medical  personnel  for  soliciting  or  taking 
bribes.  The  government  has  also  increased  salaries  of  medical  personnel  by  25%  with  the  aim  of 
doubling them within 2 to 3 years, partly motivated by the need to tackle informal payments.  

The  use  of  the  electronic  health  card  that  registers  all  consultations  and  prescriptions  has  become 
mandatory in September 2015. This tool also helps to deter abusive/fake consultations or prescriptions 
and reduce the opportunities for social insurance fraud.166 An analysis from the General Prosecution 
indicates  that  certain  fraudulent  patterns167  are  recurrent  and  need  more  attention  on  both  the 
preventive  and  the  repressive  side.  Since  last  year,  on  the  basis  of  this  analysis,  prosecutors  have 
targeted more systematically this type of corruption and have prosecuted similar cases. 

160  “Good  Governance  through  Integrity  and  Accountability  in  the  Romanian  Healthcare  System”  – 
implemented together by AID (Association for Implementing Democracy) with the Ministry of Health and 
financed from the European Social Fund 

161  According to this report, 68% of patients consider that the level of corruption within the public health system 
is high or very high, with similar figures amongst those working in county Public Health Directorates (67%), 
and hospitals (57%). 

162  Following  the  approval  of  ministerial  order  145/2015  for  approving  the  structure  and  responsibilities  of 
Ethics  Councils  functioning  within  public  hospitals  in  February  2015,  all  public  health  hospitals  (349 
hospitals) have established Ethics Councils. Some private hospitals have also established Ethics Councils. 
163  Five  hospitals  are  now  piloting  the  patient's  feedback  mechanism,  which  gives  patients  the  opportunity  to 

express their opinion and address complaints to the Ethical Councils. 

164 Though a wide range of goods are not covered by the centralised procurement unit. 
165 See Section 2.1. 
166  A  case  that  won  the  prosecutors'  national  competition  on  anticorruption  in  2015  revealed  that  doctors 
practiced  plastic  surgery  at  the  capital's  Emergency  Hospital;  the  plastic  surgery  was  then  reimbursed  by 
CNAS falsely claiming an emergency. 

167  Such  patterns  include  illegal  discounts  of  medical  analysis,  medication  or  medical  treatments,  or  issuing 
forged  medical  documents  that  entitle  patients  to  undue  benefits  of  social  insurance  funds  (e.g.  forged 
prescriptions, false diagnoses, certificates, etc.) 

36 

 
 
                                                            
In  addition,  civil  society  has  criticised  the  lack  of  transparency  as  regards  hospital  budgets.168  Data 
such  as  overall  reimbursement  flows  from  CNAS  per  geographic  region  or  per  specific 
treatments/medicines  are  not  made  available,  even  on  request.  This  limits  the  ability  for  outside 
scrutiny to identify where abnormal patterns point to a potential problem. 

Education 

The  Ministry  of  Education  has  undertaken  number  of  measures  in  order  to  prevent  corruption.  A 
methodology  for  assessing  the  risk  of  corruption  was  approved  and  a  Strategy  for  preventing 
corruption  in  education  for  2015-2017  will  also  develop  the  component  of  higher  education  and 
scientific  research.  The  Ministry  has  also  signed  protocols  with  the  Anti-corruption  General 
Directorate (DGA) to inform teachers and pupils on corruption issues.  DGA elaborated in cooperation 
with the Public Ministry a Study on education169 aimed at providing measures for better prevention of 
corruption.  
Several  important  and  complex  cases170  relating  to  baccalaureate  fraud  this  year  and  last  year  were 
taken forward by the prosecution.171 In response to such cases, it was decided that starting from school 
year 2014-2015, the papers from the national baccalaureate exam shall be assessed in another county 
than  the  one  where  the  exam  took  place.  The  papers,  according  to  the  approved  procedure,  are 
gathered  in  the  county  exam  centre  and  sent  to  the  county  appointed  for  assessment,  sealed  and 
guarded by gendarmes. The papers are assessed in rooms that have video and audio surveillance. In 
addition,  starting  from  the  school  year  2015-2016,  video  and  audio  surveillance  equipment  will  be 
installed  in  all  examination  rooms.  Such  tools  –  camera  surveillance  of  the  exams  rooms,  external 
examination, counteracting the recycling of old theses – are considered to be improving the situation 
in  the  education  sector,  as  well  as  a  number  of  successful  prosecutions  in  2015.  However,  the 
professional ethics of the professors and teachers is recognised as remaining the most important factor 
concerning corruption in the education system. 

Public procurement 

Last  year's  CVM  technical  report  noted  persistent  shortcomings  in  public  procurement  related  to 
capacity  of  the  degree  of  expertise  of  staff  dealing  with  public  procurement  procedures,  at  both 
national  and  local  level,  the  lack  of  stability  and  the  fragmentation  of  the  legal  framework,  the 
institutional system and the quality of competition in public procurement.While some steps have been 
taken at the level of institutional design and draft legislation, corruption in public procurement remains 
an area of concern. At the level of perceptions, over half of the companies that participated in a public 
procurement procedure over the past three years believe that corruption prevented them from winning 
a  public  tender  or  public  procurement  contract.  Tailor-made  (59%)  or  unclear  (54%)  specifications 
(59%),  conflict  of  interests  in  the  evaluation  of  bids  (53%)  and  collusive  bidding  (57%)  are  cited 
among the most widespread corrupt practices in public procurement. Bribes and kickbacks (58%) and 
funding  political  parties  (39%)  in  exchange  of  public  contracts  or  influence  over  policy  making  are 
also perceived to be widespread by businesses operating in Romania.172  

168  A  monitoring  portal  for  the  spending  of  public  funds  by  public  health  units  was  created  and  resulted  in 
targeted analyses and controls. But monitoring does not include  private medical service providers , despite 
the fact that these services are also partly reimbursed by public funds from the CNAS. 

169 The Study "Relevant aspects on corruption within Romanian educational system” analysed the indictments 
and Court decisions concerning personnel under the Ministry of Education and Scientific Research sentenced 
for corruption between 2012-2014 and studied the rules and procedures in  the areas of the education system 
where corruption occurred. 

170  169  persons  were  sent  to  trial  in  8  cases  for  having  committed  the  offences  of  bribe-taking,  trading  in 

influence, buying influence, misuse of office, offence assimilated to corruption. 

171  In  one  case  in  Buzua  county,  a  headmaster  sent  to  trial  together  with  the  chief  secretary,  for  trading  in 
influence with the teachers grading the papers. In Giurgiu county, fraud of the baccalaureate exam of 2013 
led to a case where 64 defendants were sent to trial, including two headmasters, a school inspector, and 31 
teachers. 

172 Flash Eurobarometer 428: Businesses’ attitudes towards corruption in the EU  

37 

 
 
                                                            
Prosecution of corruption cases linked to procurement continued in 2015, revealing recurrent practices 
of  kickbacks  for  attributing  public  contracts  and  releasing  public  payments  which  involve  sizeable 
networks of civil servants and elected and appointed public officials in local and county administrative 
structures.  The  Prosecution  in  2015  highlighted  as  risk  areas  direct  award  or  manipulated  tender 
procedures,  artificial  splitting  of  contracts  for  circumventing  thresholds,  involvement  of  bidders  in 
writing the tender specifications, over-pricing, and payments made despite a lack of execution. 

Efforts  are  being  made  to  improve  the  prevention  of  corruption  in  public  procurement,  but  their 
effectiveness  remains  to  be  proven.  Guidelines  for  procurement  practitioners  such  as  the  those 
elaborated  in  the  framework  of  the  project  "Fighting  public  procurement  criminality"173  address  the 
phenomenon  from a practical and multi-disciplinary point of view, guiding the practitioners through 
the  various  stages  of  the  procurement  lifecycle,  including  analyses  of  real  cases  of  fraud  and 
corruption.  The  work  of  the  prosecution  offers  an  opportunity  to  reach  conclusions  to  be  fed  into 
prevention policy in public procurement. 

Important  efforts  have  been  made  to  improve  the  institutional  setting  in  2015  and  new  procurement 
legislation  is  expected  for  January  2016.  A    new  public  procurement  strategy  and  action  plan  were 
developed  in  view  to  tackle  the  systemic  deficiencies  of  the  public  procurement  system  and 
implementing  the  EU  procurement  directives  and  includes  the  objective  to  adapt  the  institutional 
structures  and  internal  mechanisms  to  the  relevant  anticorruption  requirements  of  the  new  EU  legal 
framework. One positive step in the strategy is to set up a  monitoring  and supervisory function  that 
integrates  corruption  and  conflict  of  interest  risks  in  the  ex-ante  control  approach  to  public 
procurement. As such the strategy will require some important changes in the procurement system  – 
including  addressing  fundamental  issues  identified  in  the  past,  like  the  fragmentation  of  ex-post 
controls  and  a  tendency  to  rely  on  blanket  ex-ante  checks  focusing  on  formal  aspects  of  the 
procurement process without assessing objective quality considerations and without targeted controls. 
In  order  to  ensure  compliance  with  the  obligations  of  the  new  EU  public  procurement  Directives, 
further efforts will be needed to put in place appropriate legislative and institutional arrangements to 
ensure that verifications apply to all possible decision makers prone to conflicts of interest, in line with 
the definition of conflicts of interest in the Directives.174  Moreover, the relevant institutions should be 
empowered by law to effectively prevent the signature of contracts in case of suspicion of conflict of 
interests. 

A new public procurement institution has been created, the National Agency for Public Procurement 
(ANAP).  It combines the functions formerly carried out by the National Authority for Regulating and 
Monitoring  Public  Procurement  (ANRMAP)  (legislation,  advisory  and  operational  support,  ex-ante 
verifications of tender documentation, ex-post control, monitoring and international coordination) and 
the  Unit  for  Coordination  and  Verification  of  Public  Procurement  (UCVAP)  (ex-ante  control  at  the 
level  of  tender  evaluation).  Poor  coordination  between  these  functions  had  been  identified  as  a 
problem in the past. ANAP will also take over responsibility for public procurement policy-making, 
including  integrating  corruption  risks  and  preventing  corruption  in  procurement-related  policy 
decisions,  such  as  the  allocation  of  funds  for  procurement.  As  the  single  agency  for  procurement  in 
charge of all major functions, ANAP has the potential to strengthen the non-criminal side of fighting 
corruption in public procurement, by a better control, prevention and supervision function. 

173 http://www.freedomhouse.ro/ISEC/en/index.php/about/the-project 
174 Article 24 of the Directive 2014/24/EU on public procurement "Member States shall ensure that contracting 
authorities take appropriate measures to effectively prevent, identify and remedy conflicts of interest arising 
in the conduct of procurement procedures so as to avoid any distortion of competition and to ensure equal 
treatment of all economic operators…..The concept of conflicts of interest shall at least cover any situation 
where staff members of the contracting authority or of a procurement service provider acting on behalf of the 
contracting  authority  who  are  involved  in  the  conduct  of  the  procurement  procedure  or  may  influence  the 
outcome of that procedure have, directly or indirectly, a financial, economic or other personal interest which 
might  be  perceived  to  compromise  their  impartiality  and  independence  in  the  context  of  the  procurement 
procedure". 

38 

 
 
                                                            
The  authorities  involved  have  recognised  the  importance  of  good  cooperation  with  the  National 
Integrity Agency (ANI) and potential benefits of the PREVENT system175 . This will become the main 
prevention tools  for conflict of interest before signature of the contract and ANAP will have a special 
structure  dedicated  to  collaboration  for  instance  with  ANI,  DNA  and  the  other  anti-corruption 
institutions. 

On the prosecution side, the project Fight against crime related to public procurement, funded by the 
European  Commission,176  brought  together  key  investigative  and  judicial  bodies  to  enhance  the 
institutional  capacity  for  the  prevention  and  combating  criminality  in  public  procurement,  through 
aligning  operational  practices,  training,  and  links  with  European  counterparts.  Fraud  in  public 
procurement is in the remit of the Prosecutor general's office for cases not involving European funds. 
But it seems there can be difficulties with accessing information and technical expertise support from 
other bodies. 

Management of EU funds 

Fraud against EU funds lays in the remit of the DNA. The Chief Prosecutor has underlined the priority 
of  cases  involving  EU  funds  and  the  increase  in  the  number  of  cases.177  .  In  2015,  there  were  57 
indictments cases involving 138 defendants and 49 convictions against 106 defendants. In cooperation 
with  Transparency  International  and  funded  by  EU  funds,  integrity  pacts178  have  been  introduced, 
obliging  contracting  authorities  and  companies  to  comply  with  best  practice  rules  and  existing 
legislation  in  respect  of  public  procurement  procedures.  Romania  is  involved  in  three  such  pilot 
projects. If successful, these experiences will be shared and disseminated further. In order to support 
the fight against corruption and incompatibilities, the Ministry of European Funds issued a Framework 
Plan179 concerning  the improvement  of the administrative  capacity and seeking to address  risk  areas 
for its employees. 

175 See section 0. 
176  Prevention of and Fight against Crime ISEC Programme.  
177 http://www.expressen.se/nyheter/longread/darfor-kommer-tiggarna/en/hon-leder-kampen-mot-rumaniens-myglande-makt  
178 http://www.transparency.org.ro/stiri/comunicate_de_presa/2015/20martie/index_en.html  
179  The main goal of the Framework Plan is “to increase the absorption rate of EU structural funds based on the 

principle “Simplify what is legal and prevent what is illegal“. 

39