REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL On Progress in Romania under the Cooperation and Verification Mechanism
Date: 2018-11-13
Institutions: European Commission, Secretariat-General
Subjects: Romania, conflict of interest, corruption, independence of the judiciary, judge, judicial reform, public contract, rule of law

EN 

  EN 

   EUROPEAN COMMISSION  Strasbourg, 13.11.2018  COM(2018) 851 final  REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL On Progress in Romania under the Cooperation and Verification Mechanism {SWD(2018) 551 final}  
 
 
1. 

INTRODUCTION  

In  January  2017  the  Commission  undertook  a  comprehensive  assessment  of  the  progress 
made  by  Romania  over  the  ten  years  since  the  establishment  of  the  Cooperation  and 
Verification Mechanism (CVM) in 2007.1 On the basis of this longer term perspective and the 
significant progress made over the ten years to January 2017, the Commission outlined twelve 
key  recommendations  that,  if  followed  up,  would  end  the  CVM  process,  in  line  with  the 
objective  set  by  President  Juncker  to  conclude  the  CVM  process  under  this  Commission's 
mandate. The January 2017 recommendations were therefore considered as sufficient to close 
the CVM – except if developments were to clearly reverse the course of progress. It was also 
highlighted that the speed of the process would depend on how quickly Romania will be able 
to  fulfil  the  recommendations  in  an  irreversible  way.  In  particular,  the  recommendations 
focused on the responsibility and accountability required from the Romanian authorities and 
on  building  internal  safeguards  to  ensure  the  irreversibility  of  results  –  to  demonstrate  that 
ongoing projects would be continued, even without the CVM. As underlined by the Council, 
the CVM will end when all four benchmarks applying to Romania are satisfactorily met.2  
In  the  November  2017  report,3  the  Commission  noted  progress  on  a  number  of  the 
recommendations set out in the January 2017 report, “in particular recommendation 8, which 
has been satisfactorily implemented, and, subject to practical application, recommendations 2, 
7 and 12. While progress in meeting some recommendations was advancing well, the reform 
momentum in course of 2017 was lost overall, slowing down the fulfilment of the remaining 
recommendations, and with the risk of re-opening issues which the January 2017 report had 
considered as fulfilled. Challenges to and questioning judicial independence have also been a 
persistent source of concern." This was echoed by the Council in its conclusions, calling on 
Romania  “to  focus  its  efforts  on  further  consolidating  progress,  to  avoid  taking  any  steps 
backwards,  and  to  fully  address  the  concerns  and  all  the  recommendations  set  out  by  the 
Commission in its report." 4 

This report takes stock of the situation since November 2017. A series of steps by Romania 
since the January 2017 report have required the Commission to look again at the basis for its 
overall assessment, also taking into account the fact that the Venice Commission has recently 
issued two opinions on the Romanian legislative changes. Therefore, in addition to assessing 
progress on the recommendations, this report also sets out where developments have reversed 
the  course  of  progress  on  issues  which  the  Commission  considered  positively  in  January 
2017.  This  concerns  progress  on  Benchmark  One  (Judicial  independence  and  Judicial 
Reform)  and  Benchmark  Three  (Tackling  High-level  corruption).  As  a  result,  the  twelve 
recommendations of the January 2017 report are no longer sufficient to close the CVM and to 
this end additional recommendations are set out in this report.   

1   COM  (2017)  44  -  https://ec.europa.eu/info/files/progress-report-romania-2017-com-2017-44_en.  Following 
the  conclusions  of  the  Council  of  Ministers,  17  October  2006  (13339/06),  the  Mechanism  had  been 
established by a Commission Decision of 13 December 2006 (C(2006) 6569). 

2  Council  Conclusions  on 

https://ec.europa.eu/info/sites/info/files/20171212-st15587_en.pdf.  The 
Romania are set out in the accompanying Technical Report page 1. 

the  Cooperation  and  Verification  Mechanism,  12  December  2017 
four  benchmarks  applying 

3    COM(2017) 751 - https://ec.europa.eu/info/files/progress-report-romania-2017-com-2017-751_en. 
4  Council  Conclusions  on 

the  Cooperation  and  Verification  Mechanism,  12  December  2017 

- 
to 

- 

https://ec.europa.eu/info/sites/info/files/20171212-st15587_en.pdf. 

1 

 
                                                           
As  in  previous  years,  this  report  is  the  result  of  a  careful  process  of  analysis  by  the 
Commission, drawing on close cooperation with Romanian institutions, as well as the input of 
civil society and other stakeholders, including other Member States. 

2.   GENERAL SITUATION 

The  January  2017  report  noted  that  there  were  societal,  legal  and  political  factors  which, 
although not within the scope of the CVM and not covered by its recommendations, "have a 
direct bearing on the ability to deliver reform and in particular have made it more difficult for 
Romania to show that reform has taken root on a permanent basis". Points noted included a 
legislative  practice  still  to  develop  better  regulation  principles,  confrontation  between  state 
actors, and a difficult media environment.  

Whilst these broader factors are beyond the direct CVM’s scope, they clearly have an impact 
on the advance of judicial reform and the fight against corruption. None of these factors has 
seen  an  improvement  since  the  January  2017  report.  Major  legislative  changes  have  been 
rushed through using urgency procedures with minimal consultation. Judges and prosecutors 
have  continued  to  face  personal  attacks  in  the  media,  with  mechanisms  for  redress  falling 
short.  Different  branches  of  the  State  have  been  in  conflict  and  involved  in  various 
proceedings before the Constitutional Court. It is also the case that civil society, highlighted 
by the report as playing a key role in reform, has found itself a target for increased pressure. 
The situation has provoked a series of public demonstrations where the authorities’ response 
has  sparked  further  controversy.  At  the  same  time,  a  free  and  pluralistic  media  plays  an 
important  role  in  holding  the  actions  of  those  in  power  to  account,  for  example  in  bringing 
potential cases of corruption to light. It should be clear that the entry into force of the General 
Data Protection Regulation is accompanied by an obligation on Member States to ensure that 
freedom of expression and information in relation to the media is protected.      

One  of  such  broader  factors  has  been  publicly-debated  claims  that  cooperation  agreements 
between  the  judicial  institutions,  notably  the  prosecution,  and  the  Romanian  Intelligence 
Services were the source of systemic abuse, in particular in corruption cases. Those classified 
agreements have been cited as the reason for sudden legislative changes and heavy criticism 
of  the  magistracy.  The  operation  of  the  intelligence  services  is  not  a  matter  for  the  EU  and 
falls  outside  the  CVM  benchmarks.  It  is  the  role  of  the  courts  to  establish  whether  or  not 
specific allegations of abuses are substantiated and an open and impartial investigation would 
be  needed  to  establish  whether  there  were  systemic  failures  such  as  illegal  gathering  of 
evidence or illegal influence on magistrates, and whether the existing legal safeguards need to 
be strengthened. It is clearly important to ensure a framework where the intelligence services 
are  under  proper  supervision,  where  crimes  can  be  effectively  investigated  and  sanctioned 
while  fully  respecting  fundamental  rights,  and  where  the  public  can  have  confidence  that 
judicial  independence  is  secure.  Expertise  from  other  Member  States  could  be  valuable  in 
building  a  stronger  system  for  surveillance  measures  used  by  the  prosecution  and  for  the 
collaboration  between  the  intelligence  services  and  the  prosecution  essential  for  pursuing 
serious crime such as terrorism and cybercrime.  

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3.  ASSESSMENT  OF  PROGRESS  ON  THE  FULFILMENT  OF  THE 

RECOMMENDATIONS SET OUT IN THE JANUARY 2017 REPORT  

3.1.   Benchmark One: Judicial independence and Judicial reform 

Before  looking  at  the  specific  recommendations,  this  section  looks  at  developments  in  two 
areas  which  have  required  the  Commission  to  look  again  at  the  basis  for  the  assessment  in 
January 2017. 

Justice laws and legal guarantees for judicial independence 

The three Justice laws, dating back to 2004, regulate the status of judges and prosecutors, the 
organisation and functioning of the courts and prosecution offices, and the Superior Council 
of the Magistracy. The Justice laws were an essential basis for the positive assessment of the 
progress  of  Romania  in  the  CVM  in  January  2017.  The  November  2017  report  had  already 
underlined the need for the Government and the Parliament to ensure an open, transparent and 
constructive  legislative  process,  in  which  judicial  independence  and  the  opinion  of  the 
judiciary is valued and given due account.5 The report also recalled the importance of drawing 
on  the  opinion  of  the  Venice  Commission,  as  the  best  way  to  ensure  the  sustainability  of 
reform and to fulfil the CVM benchmarks.  
The amended Justice laws are now in force.6 They contain a number of measures weakening 
the  legal  guarantees  for  judicial  independence  which  are  likely  to  undermine  the  effective 
independence  of  judges  and  prosecutors,  and  hence  public  confidence  in  the  judiciary.  This 
has  been  the  focus  of  the  negative  reactions  from  the  judiciary  and  civil  society.  Key 
problematic provisions include in particular: the establishment of a special prosecution section 
for  investigating  offences  committed  by  magistrates,  new  provisions  on  material  liability  of 
magistrates for their decisions, a new early retirement scheme,7 restrictions on the freedom of 
expression  for  magistrates8  and  extended  grounds  for  revoking  members  of  the  Superior 
Council of Magistracy.9,10  

None  of  these  changes  correspond  to  CVM  recommendations.  The  one  recommendation 
which specifically called for legislative change within the scope of the Justice laws concerned 
the  appointment  procedure  for  top  prosecutors.11  This  has  not  been  implemented,  and  the 
cumulative impacts of legislative changes rather weaken the checks and balances underlying 
the operational independence of prosecutors, further strengthening the role of the Minister of 

5   The Council of Europe Consultative Council of European Judges (CCJE) recommended in past opinions that 
“the judiciary should be consulted and play an active part in the preparation of any legislation concerning 
their status and the functioning of the judicial system”. "The position of the judiciary and its relation with the 
other powers of state in a modern democracy", Opinion No 18 (2015). 

6   Law 207/2018 amending and completing Law 304/2004 on the judicial organisation entered into force on 20 
July , Law 234/2018 for amending and completing Law no. 317/2004 on the Superior Council of Magistracy 
entered into force on 11 October, Law 242/2018 amending and completing Law no. 303/2004 on the statute 
of judges and prosecutors entered into force on 15 October. 

7   Emergency  Ordinance  92/2018  of  15  October  2018  delays  for  one  year  the  entry  into  force  of  the  early 

retirement scheme, but does not abandon it as recommended by the Venice Commission opinion. 

8      This  provision  should  also  be  seen  in  combination  with  restrictions  on  the  freedom  to  receive  and  impart 

information on criminal proceedings in the amendments of the Criminal Procedure Code.  

9   Emergency Ordinance 92/2018 introduces further changes in the revocation procedure.  
10  These provisions are described in more detail in the accompanying technical report.  
11  See recommendation 1 below. 

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Justice.12 The amendments also raise questions as regards the capacity of the prosecution to 
continue the fight against high-level corruption with the same degree of independence. 

The  risk  that  these  elements  –  independently  but  also  in  terms  of  their  cumulative  effect  – 
could  result  in  pressure  on  judges  and  prosecutors,  and  ultimately  undermine  the 
independence as well as the efficiency and quality of the judiciary, has also been underlined 
by a number of outside observers: notably the Council of Europe Venice Commission,13 the 
Group  of  States  Against  Corruption  (GRECO),14  other  Member  States  and  international 
partners.15  

These assessments also underline that constitutionality checks are important but not the only 
issue at stake: they do not replace the necessity for a debate on the policy choices underlying 
major changes.  

The  Venice  Commission  delivered  a  preliminary  opinion  in  July,  but  the  laws  were 
nevertheless  promulgated  as  they  stood.  In  addition,  the  Government  adopted  several 
Emergency  Ordinances  which  accentuated  some  of  the  problems  identified,  for  example  by  
consolidating the authority of the Minister of Justice over prosecutors in particular through the 
triggering  of  disciplinary  proceedings.16  The  decision  of  the  Government  to  amend  the 
provisions setting up the special department for investigating magistrates in this way, and to 
impose  new  procedures  on  how  this  body  would  be  set  up  by  the  Superior  Council  of 
Magistracy, has raised further questions about the department’s independence.17 It also raised 
questions  about  the  readiness  of  the  Government  to  address  the  Venice  Commission 
recommendations only in a selective manner. In this sense, an opportunity was missed. 

Dismissal of the DNA Chief Prosecutor and political pressure on judicial institutions 

At  the  same  time  as  the  legal  amendments,  specific  decisions  have  underlined  the 
consequences of the concentration of power in the hands of the Minister of Justice. This was 
the  case  first  with  the  dismissal  of  the  Chief  Prosecutor  of  the  National  Anti-Corruption 
Directorate (DNA) at the request of the Minister of Justice. In a first stage, the President of 
Romania  rejected  the  proposed  dismissal,  in  line  with  the  negative  opinion  of  the  Superior 
Council of the Magistracy. However, a Constitutional Court Decision in May on the dismissal 
procedure reinforced the trend of increased power for the Minister:18 following the ruling, the 
President  was  required  to  sign  the  decree  implementing  the  dismissal  in  July.  The 
concentration of power in the hands of the Minister of Justice was further underlined by the 
decision  of  the  Minister  to  propose  the  appointment  of  a  new  Chief  Prosecutor  of  DNA, 
despite a negative opinion from the Superior Council of Magistracy stating that the candidate 

12  Specifically  with  respect  to  Romania,  the  Venice  Commission  has  underlined  the  need  to  increase  the 

independence of the prosecutors (Opinion 924/2018).   

13   Venice Commission opinion No. 924/2018 of 20 October 2018. 
14   Greco-AdHocRep(2018)2 of 23 March 2018. 
15   Joint  statement  on  behalf  by  Belgium,  Canada,  Denmark,  Finland,  France,  Germany,  Luxembourg, 
the Netherlands, Norway,  Sweden,  Switzerland, and  the  United  States  of  29  June  2018.  Available  on  the 
website  of  the  embassy  of  one  of  the  signatories:  https://www.swedenabroad.se/en/embassies/romania-
bucharest/current/news/joint-statement2/. 

16  Emergency Ordinance 92/2018.  
17  Emergency Ordinance 90/2018. 
18  Constitutional Court Decision 358 of 30 May 2018. The Venice Commission also pointed to inconsistencies 
in the case law of the Constitutional Court where previous decisions did not raise issues of constitutionality 
in relation to the President’s role in the appointment procedure of top prosecutors and had even stated that the 
role of the President in that procedure could not be purely formal.  

4 

 
                                                           
failed  to  meet  many  key  criteria.  These  developments  also  have  consequences  for  the 
irreversibility of the fight against corruption.19 

In addition, the procedure concerning the Chief Prosecutor of the DNA has been mirrored by 
other  steps  against  key  judicial  institutions.  Following  the  same  pattern  as  the  dismissal 
process  for  the  DNA  Chief  Prosecutor,  on  24  October  the  Minister  of  Justice  launched  the 
process to dismiss the Prosecutor General. Earlier in October, the Chamber of Deputies had 
already referred the Prosecutor General to the Constitutional Court in relation to the working 
arrangement with the intelligence services. The Government also took the decision to refer the 
High Court of Cassation and Justice to the Constitutional Court.20 The convergence of action 
against these key judicial institutions has clear implications for judicial independence.  

There  are  also  concerns  about  the work of the Judicial  Inspection.  Successive CVM reports 
until January 2017 had noted positively the progress in independence and professionalism of 
the  Judicial  Inspection.  However,  by  November  2017  questions  were  being  raised  and 
relations  with  the  Superior  Council  of  the  Magistracy  grew  more  difficult.21  The  November 
2017  report  made  specific  reference  to  the  Judicial  Inspection  in  the  context  of  the  need  to 
further strengthen cooperation between judicial institutions.  

The Judicial Inspection has now started to attract significant criticism. A series of disciplinary 
investigations  were  started  against  the  heads  of  key  judicial  institutions.22  Many  of  the 
magistrates  concerned  were  also  seen  as  critical  voices  concerning  ongoing  legislative 
procedures.  It  should  be  noted  that  the  Consultative  Council  of  European  Judges  and  the 
Venice  Commission  have  both  underlined  the  importance  that  judges  should  be  free  to 
comment  in  relevant  public  debates.23  24  The  Judicial  Inspection  also  conducted  a  series  of 
controls at the office of the General Prosecutor and the National Anti-Corruption Directorate. 
The fact that in at least two cases, information reached the press before the end of the control 
was the source of particular controversy.25  

In  addition,  there  was  no  competition  organised  by  the  Superior  Council  to  appoint  a  new 
management  of  the  Judicial  Inspection,  although  the  mandate  of  the  management  team 

19   See also Benchmark Three below. 
20   The Constitutional Court ruled on 7 November 2018. 
21  An  illustration  of  this  was  the  positive  reaction  of  the  management  of  the  Judicial  Inspection  when  the 
Minister  of  Justice  had  proposed  to  bring  the  Judicial  Inspection  under  its  authority  in  August  2017.  The 
Judicial  Inspection  challenged  the  SCM  decision  13044/2.08.2018  to  reject  a  report  from  the  Judicial 
Inspection that the Prosecutor General was in breach of the deontological code. 

22   Disciplinary proceedings have been initiated against the Prosecutor General, against the President of the High 
Court of Cassation and Justice, the former Chief Prosecutor of the National Anti-corruption Directorate, the 
Deputy  Chief  Prosecutor  of  the  National  Anti-Corruption  Directorate,  and  a  Head  and  Deputy  Head  of 
Section in National Anti-Corruption Directorate.  

23  The European Court of Human Rights has underlined that any interference with the freedom of expression of 
a judge in a managerial position calls for close scrutiny and that questions concerning the functioning of the 
justice  system  enjoy  a  high  degree  of  protection  under  the  right  of  freedom  of  expression.  The  Court  also 
stressed  the  “chilling  effect”  that  the  fear  of  sanction  has  on  the  exercise  of  freedom  of  expression,  in 
particular on other judges wishing to participate in the public debate on issues related to the administration of 
justice and the judiciary. ECtHR, judgement in case Baka v. Hungary, 23 June 2016, application n.20261/12, 
paras 162-167. 

24   In its opinion on the Justice laws, the Venice Commission also expressed concerns as regards the restrictions 
imposed  on  the  freedom  of  expression  of  judges  and  prosecutors  in  the  amended  law  303/2014.  Venice 
Commission opinion 924/2018, p 23. 

25   See Technical Report – SWD(2018) 551 – Recommendation 7, p 19. 

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expired  end  of  August  2018.  The  decision  of  the  Government  to  solve  the  situation  by 
adopting  an  Emergency  Ordinance  to  nominate  the  current  team  ad  interim  –  rather  than 
leaving this to the Superior Council – did nothing to assuage concerns.26   

The  Superior  Council  of  the  Magistracy  has  not  been  able  to  act  as  an  effective  check  and 
balance  to  defend  the  independence  of  judicial  institutions  under  pressure,  an  important 
constitutional  role  highlighted  in  the  January  2017  report.  Divisions  within  the  Council 
evident in its meetings with Commission services have made it increasingly difficult for the 
Council  to  be  effective  as  a  voice  for  the  judicial  system  –  notably  when  consulted  on 
legislation  –  and  as  the  manager  of  the  judicial  system.  Even  when  the  Council  has  come 
forward with a unanimous opinion, it has been ignored in significant cases.27 Although 2018 
has  seen  judicial  institutions  as  well  as  individual  judges  and  prosecutors  subject  to 
particularly  strong  public  criticism  from  Government  and  Parliament  representatives,  the 
Council  has  shown  reluctance  to  take  ex-officio  decisions  to  respond  to  attacks  on  the 
independence  of  the  judiciary.  This  risks  that  magistrates  are  dissuaded  from  playing  their 
normal role as a branch of the state in expressing their views on issues relevant to the judicial 
system.28   

Judicial independence 

Recommendation  1:  Put  in  place  a  robust  and  independent  system  of  appointing  top 
prosecutors,  based  on  clear  and  transparent  criteria,  drawing  on  the  support  of  the  Venice 
Commission.  

Recommendation  2:  Ensure  that  the  Code  of  Conduct  for  parliamentarians  now  being 
developed in Parliament includes clear provisions on mutual respect between institutions and 
making  clear  that  parliamentarians  and  the  parliamentary  process  should  respect  the 
independence of the judiciary. A similar Code of Conduct could be adopted for Ministers. 

Appointments 

In January 2017, the Commission  reiterated its recommendation to  put  in  place a system of 
transparent  and  merit-based  appointments  of  top  prosecutors,  able  to  provide  sufficient 
safeguards against politicisation. Successive CVM reports had highlighted the weaknesses of 
the checks and balances in the procedure, pointing to the degree of discretion of the Minister 
of  Justice  in  selecting  candidates,  the  limited  role  of  the  Superior  Council  of  Magistracy 
(SCM) and the extent to which the same appointment and dismissal procedure would apply at 
lower management level within the prosecution. 

The  November  2017  report  noted  the  lack  of  progress,  and  highlighted  the  ongoing 
amendments of the Justice laws gave an opportunity to address this. The report also recalled 
the need to call on the advice of the Venice Commission. The Romanian authorities did not 
follow  up  on  this  recommendation,  but  the  Venice  Commission  was  seized  by  the 

26   See Technical Report – Recommendation 7. 
27   For  example:  negative  opinions  on  the  legislative  amendments  on  the  Justice  laws  in  September  and 
November 2017, negative opinion on the dismissal of the Chief Prosecutor of the National Anti-Corruption 
Directorate in March 2018, negative opinion on the candidate for the appointment of the Chief Prosecutor of 
the National Anti-Corruption Directorate in October 2018.  

28  The European Court of Human Rights has underlined that any interference with the freedom of expression of 
a  judge  in  an  apical  position  calls  for  close  scrutiny  and  that  questions  concerning  the  functioning  of  the 
justice system enjoy a high degree of protection under the right of freedom of expression. ECtHR, judgement 
in case Baka v. Hungary, 23 June 2016. 

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Parliamentary  Assembly  of  the  Council  of  Europe.29  The  Venice  Commission  opinion 
specifically highlights the need for changes to ensure a neutral and objective appointment and 
dismissal  process,  with  a  balance  between  the  roles  of  different  institutions.30  However,  the 
amendments  of  the  Justice  laws  have  weakened  the  role  of  the  Superior  Council  of 
Magistracy  and  the  role  of  the  President  of  Romania  in  the  appointment  process  for  senior 
prosecutors,  strengthening  the  role  of  the  Minister  of  Justice.  This  further  concentration  of 
power in the hands of the Minister of Justice diverges from this recommendation. 

Codes of conduct 

Since the last CVM report, criticism of the judicial system and magistrates in the media and 
from  the  Government  and  the  Parliament  representatives  has  continued.  Throughout  2018, 
there  was  regular  criticism  targeting  the  judiciary  as  a  whole,  in  particular  the  institutions 
dealing with high-level corruption, as well as individual magistrates. This entails a clear risk 
to  public  trust  in  the  judiciary.31  This  confirms  the  need  for  action  to  discourage  open 
challenges  to  the  independence  of  justice  and  the  authority  of  court  decisions.  Attempts  to 
bring  redress  have  been  tried  through  the  Superior  Council  of  the  Magistracy  and  through 
individual  magistrates  bringing  their  own  cases  to  court.  The  CVM  recommendation  on  a 
Code of Conduct for parliamentarians sought an institutional recognition of the problem, and 
a process to take steps to address it.  

The November 2017 report acknowledged the adoption of a Code of Conduct by Parliament, 
as well as by the Government. The hope was that this would be carried through as a practical 
tool  to  address  the  problem.  However,  the  evidence  shows  that,  with  a  lack  of  explicit 
provisions on the respect for the independence of the judiciary, the Code is not yet performing 
this function. The Commission has not been made aware of any cases where procedures have 
been initiated in Parliament in response to a statement impinging on judicial independence. 

Judicial reform 

Recommendation 3: The current phase in the reform of Romania's Criminal Codes should be 
concluded,  with  Parliament  taking  forward  its  plans  to  adopt  the  amendments  presented  by 
the  government  in  2016  after  consultation  with  the  judicial  authorities.  The  Minister  of 
Justice, the Superior Council of the Magistracy and the High Court of Cassation and Justice 
should finalise an action plan to ensure that the new deadline for the implementation of the 
remaining provisions of the Code of Civil Procedures can be respected. 

Recommendation  4:  In  order  to  improve  further  the  transparency  and  predictability  of  the 
legislative  process,  and  strengthen  internal  safeguards  in  the  interest  of  irreversibility,    the 
Government  and  Parliament  should  ensure  full  transparency  and  take  proper  account  of 
consultations  with  the  relevant  authorities  and  stakeholders  in  decision-making  and 
legislative  activity  on  the  Criminal  Code  and  Code  for  Criminal  Procedures,  on  corruption 
laws, on integrity laws (incompatibilities, conflicts of interest, unjustified wealth), on the laws 

29    In  April  2018,  the  Parliamentary  Assembly  of  the  Council  of  Europe  requested  an  opinion  of  the  Venice 

Commission on the amendments of the three Justice laws. 

30  Venice Commission Opinion No. 924/2018 of 20 October 2018. The Venice Commission recognised that the 
changes  needed  to  secure  the  right  balance  between  the  roles  of  different  institutions  might  require 
Constitutional change. 

31  See  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.” 

7 

 
                                                           
 
of  justice  (pertaining  to  the  organisation  of  the  justice  system)  and  on  the  Civil  Code  and 
Code for Civil Procedures, taking inspiration from the transparency in decision-making put 
in place by the Government in 2016. 

Code of Civil Procedures 

Recommendation 3 covers the finalisation of the reform of the Code of Civil Procedures and 
developments  illustrate  the  lack  of  stability  in  the  development  of  such  key  legislation.  In 
December 2016, a new deadline of January 2019 was set for the entry into application of the 
remaining  provisions  of  this  Code.  The  November  2017  CVM  report  noted  that  steps  were 
under  way  to  provide  the  necessary  infrastructure  to  accommodate  the  new  system.  But 
Parliament  adopted  amendments  in  June  making  substantial  changes  to  the  Civil  Procedure 
Code,  including  removing  the  council  chamber  stage  in  the  civil  procedure.  Some  of  these 
amendments  were  successfully  challenged  at  the  Constitutional  Court  by  the  High  Court  of 
Cassation  and  Justice.  The  law  therefore  needs  to  be  revised  in  Parliament  and  this  process 
should take particular account of the workload of the High Court of Cassation and Justice.  

Criminal Codes 

The  November  2017  CVM  report  noted  that  the  recommendation  to  conclude  the  current 
phase of the reform of Romania's Criminal Codes remained outstanding. The recommendation 
was  based  on  the  fact  that  there  had  been  a  gradual  process  of  developing  amendments 
through consultation and reflecting the need to adapt to recent Constitutional Court decisions 
and transposition of EU Directives.32 The Government adopted a draft law in November 2017. 
However,  when  discussion  started  in  April  2018  in  a  Parliamentary  Committee,  this  was 
based on completely new drafts and a very high number of amendments. This was reflected in 
the final drafts adopted by the Parliament in June and July.  

The  amendments  constitute  a  profound  overhaul  of  the  Codes  of  2014,  including  in  the 
procedural  aspects  of  the  criminal  investigations  and  trial,  and  in  the  balance  between  the 
public  interest  in  sanctioning  crime,  victims’  rights  and  the  rights  of  suspects.  The 
amendments also reduce the scope of corruption as an offence, which – if confirmed when the 
laws  return  to  the  Parliament  following  the  Constitutional  Court  ruling  –  would  entail  a 
reassessment of the progress made so far under the CVM.33  

The  amendments  have  not  entered  into  force  as  they  have  been  challenged  at  the 
Constitutional Court. The Constitutional Court ruled in October that a substantial number of 
the  amendments  are  unconstitutional.34  In  addition  to  constitutionality  issues,  these 
amendments  have  raised  a  wide  number  of  legal  and  policy  concerns,  underlined  by  law 
enforcement  authorities  and  civil  society  inside  Romania,  as  well  as  many  partners  outside 
Romania.35  

On  20  October,  the  Venice  Commission  adopted  an  opinion  on  the  amendments  of  the 
Criminal  Code and Criminal Procedure Code.36 The conclusions of the Venice Commission 

32  For  example,  EU  Directives  on  the  presumption  of  innocence  and  on  the  freezing  and  confiscation  of  the 

proceeds of crime. 

33   See also Benchmark 3 below. 
34  Ruling on the Criminal Procedure Code of 12 October and on the Criminal Code of 25 October 2018. The 

35 

motivations of the rulings have not yet been published.  
  The  European  Commission  wrote  to  the  Romanian  government  asking  for  views  on  a  number  of  issues 
relating to compatibility with EU law on 4 October, and received a response on 5 November, referring to the 
pending follow-up to the Constitutional Court ruling. 

36   Venice Commission, Opinion  930 /2018.  

8 

 
                                                           
opinion are very critical, pointing to rule of law concerns in leaving crimes unpunished, to the 
lack  of  quality  of  the  legislation,  and  to  shortcomings  in  its  preparation  as  well  as 
contradictions  with  the  case  law  of  the  European  Court  of  Human  Rights  and  with  the 
international obligations of the country, especially regarding the fight against corruption. The 
Venice Commission therefore recommends "that the Romanian authorities conduct an overall 
re-assessment  of  the  amendments  to  the  criminal  and  criminal  procedure  codes,  through  a 
comprehensive  and  effective  consultation  process,  in  order  to  come  up  with  a  solid  and 
coherent legislative proposal, benefiting from broad support within the Romanian society, and 
taking fully into account the applicable standards." 

The  transparency  and  predictability  of  the  legislative  process  for  legislation  on  judicial 
reform and anti-corruption 

The  November  2017  report  had  pointed  to  the  potential  of  the  Special  Parliamentary 
Committee on Systematisation, Unification and Ensuring Legislative Stability in the Judiciary 
to set up a predictable amendment process, ensuring debate and public consultation.  

This Committee has dealt with the reforms of the Justice laws and the Criminal Codes. Some 
aspects  of  the  legislative  procedure  prepared  in  the  Committee  could  be  considered  as 
progress with regard to the past: the debates are broadcast, the drafts are usually available, and 
the  judicial  institutions  are  invited  to  the  debates  and  can  give  their  opinion.  However  the 
choice  of  urgency  procedures  has  strongly  limited  the  effectiveness  and  credibility  of  these 
openings.  It  remains  difficult  to  understand  the  objective  reasons  for  urgency  procedures  in 
the  first  place,  as  well  as  the  fact  that  the  urgency  was  not  later  reassessed,  given  the 
fundamental  doubts  raised  on  the  drafts.  These  doubts  were  expressed  by  Romanian 
institutions like the High Court of Cassation and Justice, and by external partners such as the 
European Commission and other Member States. The lack of debate was particularly striking 
given the fact that, following the accelerated procedures in committee, there was little or no 
debate  on  these  key  issues  of  public  policy  in  the  two  chambers  of  Parliament  themselves. 
Even  once  the  process  on  the  Justice  laws  was  complete,  in  October  the  Government  made 
further  changes  by  Emergency  Ordinance,  with  even  less  opportunity  for  consultation.  This 
process  would  leave  a  huge  implementation  challenge  for  the  judicial  authorities  and  a  real 
risk  to  the  provision  of  justice,  which  does  not  seem  to  have  been  a  consideration  in  the 
process. 

Members of the Parliament  have argued that the legislative process  is  transparent  and takes 
into  account  the  opinion  of  the  magistracy.  It  is  true  that  the  laws  do  include  amendments 
suggested by the magistracy themselves.  However, this is not  the case for most of the most 
controversial  provisions,  which  have  passed  into  law  with  little  or  no  clarity  as  to  why  the 
views  of  the  judiciary  have  been  rejected.  The  scale  of  the  questions  raised  by  the 
Constitutional Court – on constitutional issues alone – again underlines the poor preparation 
of  these  amendments  and  the  consequences  of  failing  to  draw  on  the  expertise  of  the  key 
judicial  institutions.  As  also  pointed  out  by  the  Venice  Commission  and  GRECO,  when 
envisaging  such  fundamental  legal  changes,  it  should  be  expected  that  Parliament  would 
undertake  a  genuine debate on the societal needs and impacts  of the amendments, based on 
wide consultations: these are issues of public policy, and the issues of constitutionality tested 
in the Constitutional Court cannot be considered the only questions of relevance. The fact that 
the  opinion  of  the  Venice  Commission  on  the  Justice  laws  has  found  major  remaining 
problems  in  the  laws,  and  the  concerns  that  the  amendments  to  the  Criminal  Code  and 
Criminal  Procedure  Code  may  be  inconsistent  with  the  legal  obligations  of  Romania  at  EU 
and  international  level,  are  both  illustrations  of  the  risks  of  accelerated  procedures.  This 
process cannot be considered to be in line with the recommendation.    

9 

 
Recommendation  5:  The  Government  should  put  in  place  an  appropriate  Action  Plan  to 
address the issue of implementation of court decisions and application of jurisprudence of the 
courts  by  public  administration,  including  a  mechanism  to  provide  accurate  statistics  to 
enable future monitoring. It should also develop a system of internal monitoring involving the 
Superior  Council  of  the  Magistracy  and  Court  of  Auditors  in  order  to  ensure  proper 
implementation of the Action Plan. 

Recommendation  6:  The  Strategic  Judicial  Management,  i.e.  the  Minister  of  Justice,  the 
Superior  Council  Of  the  Magistracy,  the  High  Court  of  Cassation  and  Justice  and  the 
Prosecutor-General should ensure the implementation of the Action Plan as adopted and put 
in  place  regular  common  public  reporting  on  its  implementation,  including  solutions  to  the 
issues of shortages of court clerks, excessive workload and delays in motivation of decisions. 

Respect for court decisions 

Respect  and  implementation  of  court  decisions  is  an  integral  part  of  the  efficiency  of  the 
judicial system as  set  out  in  Benchmark One.37  Following a condemnation  by the European 
Court of Human Rights in 2016, Romania proposed to the Council of Europe Committee of 
Ministers  an  action  plan  to  address  the  structural  problems  of  non-enforcement  of  court 
decisions  against  the  State.38  This  action  plan  and  the  additional  measures  required  by  the 
Council  of  Europe  Committee  of  Ministers  are  of  direct  relevance  to  addressing  this 
recommendation. 

Steps  are  under  way  to  progress  on  the  action  plan  and  a  list  of  measures  to  take  was 
submitted  to  the  Government  in  September.  Proposals  include  amendments  to  the  legal 
framework in order to guarantee timely execution and a mechanism to supervise and prevent 
late execution of judgements for which the State is a debtor. The Ministry of Justice and the 
Superior Council of Magistracy are also advancing with an  IT registry of court decisions in 
which the State is a debtor or a creditor.39  

Structural reforms to the judicial system 
The  November  2017  report  noted  that  the  comprehensive  Action  Plan  adopted  in  201640 
setting  out  the  structural  reform  steps  to  be  taken  until  2020  for  the  development  of  the 
judicial system was under way, and that it should be a tool to bring major benefits to the users 
of  the  justice  system  and  improve  public  trust.  This  Action  Plan  has  been  developed  and 
adjusted in the course of 2018, and has  financial support from EU structural funds,41 guided 
by meetings of the Strategic Management Council. It also tackled issues such as setting up a 
permanent mechanism of dialogue between the representatives of the three state powers and 
bringing the IT system up to date in terms of data protection.  

37

38

   Guide  on  Article  6  of  the  European  Convention  on  Human  Rights  –  Right  to  a  fair  trial  (civil  limb), 

http://www.echr.coe.int/Documents/Guide_Art_6_ENG.pdf.  

   https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=09000016806dda63. 

39   See Technical Report – Recommendation 5. 
40      Action  Plan  for  implementing  the  Strategy  for  the  Development  of  the  Judiciary  2015-2020  approved 

through Government Decision no. 282/2016. 

41  The Superior Council of Magistracy, the National Institute of Magistracy, the National School of Clerks and 
the  Judicial  Inspection  have  successfully  applied  for  projects  under  the  specific  objective  2.3  of  the 
Administrative Capacity Operational Programme. The Public Ministry is also implementing several projects 
funded under the same strategic objective. 

10 

 
 
                                                           
However, the Strategic Management Council has not developed into a forum able to address 
major strategic questions for the judicial system. For example, it seems to have played no part 
in the debates about the changes to the Justice laws and the Civil and Criminal Codes, which 
will  have  fundamental  consequences  for  the  functioning  and  organisation  of  the  justice 
system.  As  noted  above,  the  implementation  of  the  Justice  laws  has  been  taken  forward 
through unilateral Emergency Ordinances rather than through consensual decisions from the 
Strategic Judicial Management.42  

Recommendation 7: The new Superior Council of the Magistracy should prepare a collective 
programme for its mandate, including measures to promote transparency and accountability. 
It  should  include  a  strategy  on  outreach,  with  regular  open  meetings  with  assemblies  of 
judges  and  prosecutors  at  all  levels,  as  well  as  with  civil  society  and  professional 
organisations, and set up annual reporting to be discussed in courts' and prosecutors' general 
assemblies. 

The transparency and accountability of the Superior Council of the Magistracy  

The November 2017 report noted that the Superior Council of the Magistracy had set out its 
priorities for its mandate (2017–2022), providing a first basis to promote the accountability of 
the institution. The report also  noted that despite challenging circumstances, the Council had 
been  able  to  take  difficult  decisions,  for  example  in  rejecting  proposed  amendments  of  the 
Justice laws. It concluded that "the Council should continue to consolidate its work to defend 
the  reputation  of  the  magistracy  in  a  consistent  and  effective  way,  and  to  contribute  to  a 
constructive and transparent dialogue with the Government and Parliament." 

Since then, circumstances have made it increasingly difficult for the Council to maintain the 
approach set out in its priorities, with a series of opinions rejected by the government.43 The 
Council was divided on how to react to the recommendations of the Venice Commission and 
GRECO on the Justice laws, even in more managerial areas such as analysing the impact of 
amendments such as the early retirement scheme and delayed entry into the profession.  

On  the  amendments  of  the  Criminal  Codes,  the  Council  was  requested  to  give  a  point  of 
view.44  It  consulted  all  courts  and  prosecution  offices  and  shared  a  summary  point  of  view 
with  the  Parliamentary  Committee.  Members  of  the  Council  attended  the  debates  in 
Parliament, putting forward amendments and making comments. However, after the adoption 
of  the  laws  by  Parliament,  the  Council  did  not  give  an  opinion  on  the  changes,  nor  did  it 
analyse the impacts of the amendments on the judicial system.  

The January 2017 report underlined in particular the value of public reporting by the Council 
on actions it has taken in defending the independence of justice and protection of reputation, 
independence and impartiality of magistrates. However, the Council was not able to provide a 
strong  stance  in  this  area,  despite  the  overall  situation  in  terms  of  public  criticism  of  the 
magistracy and judicial institutions.  

42   Emergency Ordinance 90/2018 of 10 October 2018 on measures for the operationalisation of the Department 
for  the  investigation  of  offences  committed  within  the  judiciary;  Emergency  Ordinance  92/2018  of  16 
October 2018 amending the law on the statute of magistrates; Emergency Ordinance 77/2018 of 5 September 
2018 appointing an interim management team in the Judicial Inspection. 

43   See footnote 27. 
44   The SCM members informed the CVM mission that a "point of view" is not the same as an opinion and does 

not require a decision by the SCM plenum.  

11 

 
                                                           
In  January  2017,  the  Commission  was  able  to  mark  “substantial  progress”  on  Benchmark 
One.  The  situation  today  is  that  while  there  has  been  progress  on  recommendation  5 
(execution of judgements), other steps taken by Romania have reversed or put into question 
the  progress  achieved.  Recommendations  1,  3  and  4  have  not  been 
followed. 
Recommendations  2,  6  and  7  have  seen  no  progress  towards  meaningful  results.  More 
broadly,  legislative  changes  undermining  the  guarantees  for  judicial  independence  and 
centralising  more  power  with  the  Minister  of  Justice,  and  a  series  of  steps  pressuring  key 
judicial institutions, constitute backtracking by the Romanian authorities from the basis of the 
January  2017  assessment.  The  ongoing  amendments  of  the  Criminal  Code  and  Criminal 
Procedure  Code  also  entail  serious  risks  of  backtracking.  Therefore,  the  Commission 
considers that Benchmark One cannot be considered as fulfilled and to achieve this objective 
additional recommendations are required, as a set out in the conclusion of this report.   

3.2.   Benchmark Two: Integrity framework and the National Integrity Agency 

Recommendation 8: Ensure the entry into operation of the PREVENT system. The National 
Integrity Agency and the National Public Procurement Agency should put in place reporting 
on the ex-ante checks of public procurement procedures and their follow-up, including ex post 
checks,  as  well  as  on  cases  of  conflicts  of  interest  or  corruption  discovered,  and  the 
organisation  of  public  debates  so  that  the  government,  local  authorities,  the  judiciary  and 
civil society are invited to respond. 

Recommendation  9:  The  Parliament  should  be  transparent  in  its  decision-making  with 
regard  to  the  follow-up  to  final  and  irrevocable  decisions  on  incompatibilities,  conflicts  of 
interests and unjustified wealth against its members. 

The PREVENT system 

The  PREVENT  system  is  designed  to  prevent  conflicts  of  interests  in  public  procurement 
procedures  by  setting  up  an  ex-ante  verification  mechanism  and  allowing  the  contracting 
authorities to remedy possible problems prior to the award of the contract. The system is now 
fully  operational  and  the  National  Integrity  Agency  (ANI)  reports  positive  results.45  In 
addition to the warnings, PREVENT has also raised awareness among contracting authorities. 
Overall, it seems  that the preventive  approach is gaining traction and the willingness  of the 
large  majority  of  contracting  authorities  to  eliminate  potential  conflicts  of  interests  before 
contracts are signed demonstrates its value. A legislative change introducing the possibility to 
fine a contracting authority for a failure to respond to alerts from the PREVENT system has 
been introduced, but its added value is unclear.46 

More  broadly,  the  track  record  of  the  Agency  remained  steady  on  investigations  of 
incompatibilities and administrative conflicts of interests.47 However, the stability of the legal 
framework for integrity continues to face challenge. Two legislative proposals were adopted 
by  the  Parliament  in  July,  despite  a  negative  opinion  from  ANI.  The  first  would  set  a 

45  Since  the  start  of  operations  in  June  2017  until  1  September  2018, PREVENT  has  analysed  16.210 public 
procurement procedures of a cumulative value of about EUR 15.470 million. Eight percent of the procedures 
analysed concerned EU funds. ANI issued 57 integrity warnings, some of them concerning procurements of 
very  high  values.  The  total  amount  of  the  value  of  the  procurement  procedures  for  which  there  was  an 
integrity warning is EUR 112 million. In 48 cases, the contracting authorities eliminated the potential conflict 
of interest. For 9 cases the potential conflict of interests was not addressed. ANI has started an investigation 
for conflict of interests in two of these cases. 

46   Emergency Ordinance 98/2017 of 14 December 2017. See also Technical Report – Recommendation 8, p22 
47   See also Technical Report – Benchmark 2, p 21. 

12 

 
                                                           
prescription deadline of three years for the deeds that determine the existence of the state of 
conflict  of  interests  or  incompatibility.48  The  second  proposal  would  amend  the  sanctioning 
regime regarding conflict of interests for local elected officials.49 Both have been challenged 
at the Constitutional Court.50 Further proposals are pending in Parliament.  

Another challenge relates to ANI’s financial resources. Following a sharply reduced budget in 
2017,  further  reductions  leave  ANI  risking  financial  difficulties  in  paying  salaries  and 
contractors.51  It is essential that the Agency has the necessary resources to continue fulfilling 
its tasks in accordance with Benchmark Two.  

Follow-up of court decisions concerning Members of the Parliament 

Previous CVM reports have highlighted delays and apparent inconsistencies in the application 
of sanctions for Members of Parliament found incompatible or in conflict of interest following 
a final court decision on a report of the Agency. The Commission had therefore recommended 
more transparency in  decision-making, and  gave some concrete suggestions to  this  effect  in 
the  November  2017  report.  Since  October  2016,  five  final  and  irrevocable  court  decisions 
have been ruled against Members of Parliament.  In two cases, as well as in two other cases 
relating  to  the  December  2016  elections,52    Parliament  has  written  to  ANI  stating  that  no 
disciplinary  sanction  would  be  applied.53  For  the  other  cases  the  Parliament  has  not  yet 
reacted. Whilst such letters are a step forward in terms of transparency, the reasoning of the 
Parliament risks creating a loophole in terms of the dissuasiveness of sanctions. The argument 
was  that  no  action  was  taken  because  the  integrity  incident  in  question  came  in  a  previous 
mandate  or  position.  This  is  not  an  interpretation  applied  so  far  by  the  courts  or  by  other 
public  institutions.  This  suggests  a  need  for  clarity  on  the  rules  on  incompatibilities  and 
conflict  of  interests  in  a  way  which  fulfils  the  CVM  benchmark  of  securing  “mandatory 
decisions on the basis of which dissuasive sanctions can be taken”. 

The  Commission  considers  that  the  significant  progress  marked  under  Benchmark  Two  in 
November  2017  has  stalled.  Recommendation  8  is  fulfilled  as  long  as  PREVENT  is 
consolidated  as  an  effective  preventative  tool.  Progress  on  recommendation  9  requires  the 
current lack of clarity on the rules to be resolved. 

3.3   Benchmark Three: Tackling High-level corruption 

Sustainability  of  the  National  Anti-Corruption  Directorate  and  irreversibility  of  the  fight 
against corruption 

The  January  2017  report  recognised  the  substantial  progress  made  in  tackling  high-level 
corruption.  It  also  underlined  that  weakening  or  shrinking  the  scope  of  corruption  as  an 
offence,  or  major  challenges  to  the  independence  and  effectiveness  of  the  anti-corruption 
prosecution  office,  would  constitute  backtracking.  Developments  since  the  November  2017 

48   Law modifying Law 176/2010 regarding integrity in public functions. 
49   Law modifying Law 393/2004 on the Statute of locally elected officials. 
50 

  The Constitutional Court ruled on one of the laws on 16 October 2018 and on the other on 6 November 2018, 
where it announced, through a press release, that the first legislative proposal is unconstitutional. 

51   From about 33 million Lei in 2016 to 22,5 million Lei in 2017. In 2018, the budget has been further reduced 

to 18 million Lei (a supplement of 1,5 million Lei was requested by ANI but was not approved). 
52   These cases, three in total, were referred to in the November 2017 report COM(2017) 751, p 9. 
53   Referring  to  decisions  of  February  2018  of  the  Permanent  bureau  of  the  Chambers  of  Deputies.  See 

Technical Report – Recommendation 9.  

13 

 
                                                           
CVM  report  have  required  the  Commission  to  look  again  at  its  assessment.  A  pattern  of 
pressure  on  the  key  anti-corruption  institutions  has  created  growing  concerns  on  their 
continued ability to deliver and hence on the irreversibility of the fight against corruption.  

The  National  Anti-Corruption  Directorate  (DNA)  has  been  a  particular  target  in  terms  of 
pressure likely to damage its independence. As well as heavy public and media criticism from 
senior politicians, the fact that both the dismissal of the sitting Chief Prosecutor of the DNA, 
and the proposed appointment  of a new Chief Prosecutor of the DNA, ignored the negative  
opinion of the Superior Council of the Magistracy raised major doubts about the process (see 
above). The Minister of Justice has also launched procedures for appointing new Deputies and 
Heads of Sector following the same procedure. The amended justice laws also create potential 
difficulties  in  terms  of  staff  who  may  have  to  leave  the  DNA.  In  October,  the  Government 
adopted  a  new  Emergency  Ordinance  which  would  modify  the  seniority  requirements  for 
DNA prosecutors, which could have further negative impacts on the operational capacity of 
the DNA.  

The pressure has extended to  the High Court of Cassation  and Justice (HCCJ), in  particular 
the  judges  of  the  criminal  section.  As  mentioned  above,  the  Government  has  referred  the 
HCCJ  to  the  Constitutional  Court.  This  is  in  addition  to  pressure  from  within  the  judicial 
system, and there was controversy when the Superior Council of the Magistracy did not renew 
the  mandate  of  the  President  of  the  criminal  section  of  the  HCCJ,  dealing  with  many  high-
level corruption cases, and when the Judicial Inspection was seized with referrals concerning 
the President of the HCCJ (see above). 

The  steps  taken  by  the  Government  may  also  be  reflected  in  an  apparent  reduction  in  the 
cooperation  with  the  DNA,  with  many  public  institutions  such  as  ministries,  the  court  of 
accounts  and  other  control  bodies  reportedly  more  reluctant  to  notify  potential  fraud  and 
corruption cases.54  

The establishment of the new section for investigation of offences committed by magistrates 
in  the  amended  Justice  laws  creates  a  specific  concern  with  regard  to  the  fight  against 
corruption,  as  a  new  structure  could  be  more  vulnerable  in  terms  of  independence  than  has 
been  the  case  so  far  with  the  DNA,  as  it  could  be  used  as  an  additional  instrument  to 
intimidate  and  put  pressure  on  magistrates.  In  addition,  as  a  generalist  department  dealing 
with  all  crimes  by  magistrates,  it  will  also  lack  expertise  in  terms  of  investigating  specific 
corruption  crimes,  and  the  impact  would  be  accentuated  if  investigations  of  all  individuals 
linked to a case involving a magistrate were also removed from the jurisdiction of the DNA. 
As for the legal framework, the amendments to the Criminal Code and the Code of Criminal 
Procedures  adopted  by  the  Parliament  before  the  summer  could  also  undermine  the  fight 
against corruption (see above). In the widespread criticism of these amendments, the impact 
on  corruption  has  been  highlighted.  As  well  as  seriously  hampering  investigations, 
prosecution  and  sentencing,  the  scope  of  several  corruption  crimes  as  an  offence  has  been 
diminished.  This  was  also  an  important  element  in  the  opinion  issued  by  the  Venice 
Commission on the Codes,55 and may raise questions on the compatibility with international 
conventions ratified by Romania. The Venice Commission highlights that, "taken separately, 
but especially in view of their cumulative effect, many amendments will seriously impair the 
effectiveness  of  the  Romanian  criminal  justice  system  in  the  fight  against  various  forms  of 
crime, including corruption-related offences, violent crimes and organised criminality." There 
is  no  indication  that  this  issue  of  compatibility  with  international  obligations  has  been  the 

54   See Technical report – Benchmark 3. 
55   Venice Commission opinion 930 /2018. 

14 

 
                                                           
subject  of  debate  in  Government  or  Parliament.  Some  of  these  changes  have  been  ruled 
unconstitutional.56 

Recommendation  10:  Adopt  objective  criteria  for  deciding  on  and  motivating  lifting  of 
immunity  of  Members  of  Parliament  to  help  ensure  that  immunity  is  not  used  to  avoid 
investigation  and  prosecution  of  corruption  crimes.  The  government  could  also  consider 
modifying  the  law  to  limit  immunity  of  ministers  to  time  in  office.  These  steps  could  be 
assisted by the Venice Commission and GRECO.57 The Parliament should set up a system to 
report  regularly  on  decisions  taken  by  its  Chambers  on  requests  for  lifting  immunities  and 
could organise a public debate so that the Superior Council of Magistracy and civil society 
can respond. 

Recommendation 10 concerns the accountability of the Parliament in its decisions on requests 
from  the  prosecution  to  authorise  preventative  measures  such  as  searches  or  arrest  and  on 
requests to authorise the investigation of an MP when he/she is also or has been a Minister. 
This  is  a  power  under  the  Constitution,  mirroring  many  parliamentary  systems  where 
immunities exist to protect Members of Parliament in the exercise of their elective mandate.  
The recommendation concerns not the fact that this power exists, but the way in which it is 
exercised.  Previous  CVM  reports  have  highlighted  the  importance  of  transparent  criteria  to 
help Parliament demonstrate that it is exercising this power in an objective way. This would 
also  help  to  show  a  link  between  the  refusal  of  requests  from  the  prosecution  and  the 
protection of Members of Parliament in the exercise of their elective mandate, and not to limit 
or avoid the investigation and prosecution of corruption crimes.   

The November 2017 report welcomed that consideration had been given to the need for more 
transparency on the follow up to requests from the prosecution. However, it considered that 
more work was needed on recommendation 10 and reiterated its advice to seek the assistance 
of the Venice Commission and GRECO. The Legal Committee of the Chamber of Deputies 
has expressed openness to refer to existing criteria set out by the Venice Commission, but this 
has not been the case so far58 and this has not been formalised in the rules of the Chamber or 
the Senate.    

There has been no follow-up in 2018 on the invitation to the government to consider changing 
the law to  clarify that Ministerial immunity related only to  actions of ministers during their 
time in office. In the year to August 2018, two requests to start criminal proceedings against 
former  ministers  who  are  not  Members  of  Parliament  were  accepted  by  the  President  of 
Romania. 

The  recommendation  also  pointed  to  reporting  on  decisions  and  holding  a  public  debate.  A 
first  step  in  this  direction  is  that  debates  in  Parliamentary  committees  and  plenary  are 
broadcast live and can also be viewed online at a later stage.  

On the basis of an analysis of Benchmark Three, the Commission can confirm its conclusion 
from November 2017 that more work is needed on recommendation 10. Moreover, the basis 

56    Constitutional  Court  decision  on  the  special  law  on  corruption  78/2000  of  25  September  2018,  and on  the 

Criminal Code on 25 October 2018. 

57   The  Group  of  States  against  Corruption  (GRECO)  was  established  in  1999  by  the  Council  of  Europe  to 

monitor compliance with the organisation’s anti-corruption standards. 

58   In  the  period  September  2017-August  2018,  there  was  one  request  to  authorise  the  start  of  criminal 
investigation  of  a  former  Minister,  now  Member  of  Parliament.  The  Chamber  of  Deputies  rejected  the 
request.  No reference was made to criteria. 

15 

 
                                                           
for the positive assessment reached in respect of Benchmark Three in January 2017 has been 
reopened by Romania. Therefore recommendation 10 can no longer be deemed to suffice in 
order to close the Benchmark and to this end additional recommendations are included in the 
conclusions of this report.  

3.4 

Benchmark Four: Tackling Corruption at all levels 

Recommendation  11:  Continue  to  implement  the  National  Anti-corruption  Strategy, 
respecting the deadlines set by the government in August 2016. The Minister of Justice should 
put  in  place  a  reporting  system  on  the  effective  implementation  of  the  National  Anti-
corruption  Strategy  (including  statistics  on  integrity  incidents  in  public  administration, 
details of disciplinary procedures and sanctions and information on the structural measures 
applied in vulnerable areas). 

Recommendation 12: Ensure that the National Agency for the Management of Seized Assets 
is  fully  and  effectively  operational  so  that  it  can  issue  a  first  annual  report  with  reliable 
statistical  information  on  confiscation  of  criminal  assets.  The  Agency  should  put  in  place  a 
system to report regularly on development of administrative capacity, results in confiscation 
and managing criminal assets.  

National Anti-Corruption Strategy 

The past year has seen some continued progress on the National Anti-Corruption Strategy. In 
March  2018,  the  Technical  Secretariat  within  the  Ministry  of  Justice  published  its  first 
monitoring report.59 The Technical Secretariat has continued to organise thematic evaluations 
of  public  institutions,  aiming  to  check  how  these  institutions  define  corruption  risks  in  key 
areas  and  the  measures  in  place  to  prevent  incidents.  Peer  review  evaluations  will  be 
supported  by  EU  funds.  The  implementation  of  the  strategy  appears  to  have  progressed  in 
some  important  vulnerable  sectors,  especially  in  education,  the  Ministry  of  Interior  and  at 
local level, but less obviously in the case of health. 

One of the objectives of the strategy is to improve performance in the fight against corruption 
by the application of criminal and administrative sanctions. Over the past  year, the National 
Integrity  Agency  and  the  National  Anti-Corruption  Directorate  have  continued  their  work, 
and  the  General  Prosecution  Service  has  pursued  the  prosecution  of  corruption  crimes  not 
falling  under  DNA’s  remit.60  However,  as  set  out  above,  the  effectiveness  of  these  key 
institutions has been challenged, and several ongoing legislative initiatives raise concerns as 
regards their potential impact on the implementation of the Strategy and give a contradictory 
signal  in  terms  of  political  support  for  the  continuation  of  corruption  prevention  and 
sanctioning.  This  includes  the  amendments  to  the  Criminal  Code  and  Criminal  Procedure 
Code,  and  to  the  integrity  framework,  with  the  risk  of  an  impact  at  every  level  of  public 
administration.  

National Agency for the Management of Seized Assets 

The National Agency for the Management of Seized Assets (ANABI) is now fully operational 
and has continued to develop its work and sets out this clearly in annual reports. The Agency 
has  also  progressed  on  the  development  of  a  national  integrated  system  to  monitor  the 

59  Progress  Report  on  the  implementation  of  the  National  Anticorruption  Strategy  2016-2020  in  2017  

https://sna.just.ro/Rapoarte+de+monitorizare. 

60  Results of institutions are detailed in the Technical report. 

16 

 
                                                           
measures  taken  by  the  authorities  at  each  step  of  the  asset  recovery  process.  Nevertheless, 
ANABI  has  the  potential  to  develop  further.  An  important  element  would  be  to  develop  its 
activities relating to social and public re-use of seized assets, where the legislation allows for  
support to civil society projects such as legal education, criminality prevention, assistance to 
victims and other projects of public interest.  Because of insufficient administrative capacity, 
the agency has so far been unable to launch a call for proposals in this area.  In October 2018, 
the agency  was  operating with  a staff of only 20 people out  of the 35 staff foreseen,  which 
limits it to a strict focus on core activities.61 

On the basis of an analysis of Benchmark Four,  the Commission can confirm its conclusion 
from  November  2017  that  more  work  is  needed  to  progress  towards  completing  the 
Benchmark. Corruption prevention is held back by political developments, which undermine 
the  credibility  of  progress  (recommendation  11).  Concerning  recommendation  12,  the 
Commission can conclude this recommendation is fulfilled, but it will be important to ensure 
sufficient human resources for ANABI. 

4.  

CONCLUSION  

Over the twelve months since November 2017, Romania has taken some steps to implement 
the recommendations set out in the January 2017 report. In line with the assessment set out in 
this  report,  the  Commission  considers  recommendations  8  and  12  can  be  considered  as 
fulfilled, and further progress has been made on recommendations 5 and 9.  

However, the assessment of the January 2017 report was always conditioned on the avoidance 
of negative steps calling into question the progress made in the past 10 years. The entry into 
force of the amended Justice laws, the pressure on judicial independence in general and on the 
National  Anti-Corruption  Directorate  in  particular,  and  other  steps  undermining  the  fight 
against  corruption  have  reversed  or  called  into  question  the  irreversibility  of  progress,  in 
particular under Benchmarks One and Three.   

As  a  result,  the  twelve  recommendations  set  out  in  the  January  2017  report  are  no  longer 
sufficient to close the CVM in line with the objective set out by the President Juncker and to 
this  end  additional  recommendations  are  set  out  in  this  report.  This  will  require  the  key 
institutions of Romania to demonstrate a strong commitment to judicial independence and the 
fight against corruption as indispensable cornerstones, and to restore the capacity of national 
safeguards and checks and balances to act when there is a risk of a backwards step.  

To remedy the situation the following measures are recommended:  

Justice laws 

  Suspend immediately the implementation of the Justice laws and subsequent Emergency 

Ordinances. 

  Revise  the  Justice  laws  taking  fully  into  account  the  recommendations  under  the  CVM 

and issued by the Venice Commission and GRECO.  

Appointments/dismissals within judiciary  

  Suspend  immediately  all  ongoing  appointments  and  dismissal  procedures  for  senior 

prosecutors. 

61   Some recruitment procedures have recently been authorised. 

17 

 
 
                                                           
  Relaunch a process to appoint a Chief prosecutor of the DNA with proven experience in 
the prosecution of corruption crimes and with a clear mandate for the DNA to continue to 
conduct professional, independent and non-partisan investigations of corruption.   

  The  Superior  Council  of  Magistracy  to  appoint  immediately  an  interim  team  for  the 
management  of  the  Judicial  Inspection  and  within  three  months  to  appoint  through  a 
competition a new management team in the Inspection.  

  Respect  negative  opinions  from  the  Superior  Council  on  appointments  or  dismissals  of 
prosecutors at managerial posts, until such time as a new legislative framework is in place 
in accordance with recommendation 1 from January 2017.  

Criminal Codes 
  Freeze the entry into force of the changes to the Criminal Code and Criminal Procedure 

Code. 

  Reopen the revision of the Criminal Code and Criminal Procedure Code taking fully into 
account  the  need  for  compatibility  with  EU  law  and  international  anti-corruption 
instruments, as well as the recommendations under the CVM and the Venice Commission 
opinion.  

The Commission will continue to follow closely and will assess the situation before the end of 
this  Commission's  mandate.  The  immediate  implementation  of  the  additional  measures  is 
essential to put the reform process back on track and resume the path towards the conclusion 
of the CVM as set out in the January 2017 report.  

18