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 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  SWD(2018) 551 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 Cooperation and Verification Mechanism {COM(2018) 851 final}  
 
 
Benchmarks to be addressed by Romania pursuant to Commission Decision of 13/XII/2006 establishing a 
mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of 
judicial reform and the fight against corruption:1 

Benchmark 1: Ensure a more transparent and efficient judicial process notably by enhancing the capacity 
and accountability of the Superior Council of Magistracy. Report and monitor the impact of the new civil 
and penal procedures codes 

Benchmark 2: Establish, as foreseen, an integrity agency with responsibilities for verifying assets, 
incompatibilities and potential conflicts of interest, and for issuing mandatory decisions on the basis of 
which dissuasive sanctions can be taken 

Benchmark 3: Building on progress already made, continue to conduct professional, non- partisan 
investigations into allegations of high- level corruption 

Benchmark 4: Take further measures to prevent and fight against corruption, in particular within the local 
government 

List of acronyms 
ANABI: National Agency for the Management of Seized Assets  
ANAF: National Agency for Fiscal Administration 
ANI: National Integrity Agency 
ANAP: National Agency for Public Procurement 
ARO: Asset Recovery Office 
CCJE: Council of Europe Consultative Council of European Judges  
CCR: Constitutional Court 
CVM: Cooperation and Verification Mechanism 
DGA: Anti-corruption Directorate General – Ministry of Internal Affairs 
DIICOT: Directorate for Investigating Organised Crime and Terrorism 
DLAF: Fight Against Fraud Department 
DNA: National Anti-Corruption Directorate 
ECHR: European Court of Human Rights 
ERDF: European Regional Development Funds 
ESF: European Social funds  
HCCJ: High Court of Cassation and Justice 
MoJ: Ministry of Justice 
NAS: National Anti-corruption Strategy 
NIC: National Integrity Council 
NIM: National Institute of Magistracy 
SCM: Superior Council of the Magistracy 

References  to  "CVM  reports"  refer  to  the  Commission  Progress  Reports  and  the  accompanying  Technical 
Reports. 

CVM report 2016: COM(2016) 41 and SWD(2016) 16 – report of progress in 2015 
CVM report January 2017: COM(2017) 44 and SWD(2017) 25 – report of progress since 2007 and in 2016 
CVM report November 2017: COM(2017)751 and SWD(2017)701 – report of progress in 2017 

1       Previous CVM reports can be consulted at: https://ec.europa.eu/info/policies/justice-and-fundamental-

rights/effective-justice/rule-law/assistance-bulgaria-and-romania-under-cvm/reports-progress-bulgaria-and-
romania_en  

1 

 
 
 
 
 
                                                           
 
1. 

INTRODUCTION 

This technical report summarises the information which the Commission has used as the basis for its 
assessment of Romania's progress under the Co-operation and Verification Mechanism (CVM) since 
the last CVM report of November 2017.  

This information has been collected from a variety of sources. The Commission has had the benefit of 
working  closely  with  the  relevant  authorities  in  Romania,  providing  information  on  progress  in 
detailed  reports,  as  well  as  in  face-to-face  meetings.2  Commission  contacts  with  the  Romanian 
administration  and  society  across  the  full  range  of  EU  policies,  including  through  the  European 
Semester for economic governance, help to inform the CVM reports. In addition to official contacts 
with Romanian authorities, the Commission meets with non-governmental organisations active in the 
area  of  judicial  reform  and  anti-corruption  work,  with  professional  associations  of  judges  and 
prosecutors,  and  with  representatives  of  other  EU  Member  States  in  Romania.  More  generally,  the 
Commission  further  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. 3 

Since  the  time  when  the  CVM  benchmarks  were  adopted,  there  have  been  major  developments  in 
Court  of  Justice  and  ECHR  case-law,  international  standards  and  best  practices,4  and  comparative 
information  on  national  justice  systems  in  the  EU,5  which  also  help  to  give  an  objective  and 
comparable  measure  of  the  development  of  the  Romanian  judicial  system  and  the  fight  against 
corruption.  

The  Commission  also  supports  the  efforts  of  Romania  in  achieving  the  CVM  objectives  through 
funding under the European Structural and Investment Funds and the Internal Security Fund–Police.  
In  the  2014-2020  period,  the  European  Social  Fund  (ESF)  Administrative  Capacity  Operational 
Programme will provide funding of about EUR 100 million for judicial reform projects, linked to the 
development  of  the  strategic  management  of  the  judicial  system,  reinforcing  the  capacity  of  the 
institutions  and  improving  their  performance,  and  the  performance  of  practitioners  (judges,  clerks, 
prosecutors etc.), information and judicial education campaigns, improved transparency and integrity 
at the level of the judiciary system. In addition, ESF also supports reform and improvements in public 
procurement (with around EUR 10 million contracted so far), and the implementation of the National 
Anti-Corruption Strategy at local level. ERDF resources of 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). Financing by EU funds can also be 
subject  to  the  agreement  of  strategies  and  implementation  of  actions  with  the  Commission  (ex-ante 

2     In 2018, the Commission services had three fact-finding missions in Romania. Meetings were held with the 
Ministry  of  Justice,  the  National  Agency  for  Fiscal  Administration  (ANAF),  the  Ministry  of  Regional 
Development and Public  Administration (MRDAP), the  High Court of Cassation and Justice (HCCJ), the 
Superior  Council  of  the  Magistracy  (SCM),  the  Prosecutor  General,  the  National  Anti-Corruption 
Directorate  (DNA),  the  Directorate  for  Investigation  of  Organised  Crime  and  Terrorism  (DIICOT),  the 
Judicial Inspection, the National Integrity Agency (ANI), members of the Chamber of Deputies, members 
of  the  Senate,  and  the  Constitutional  Court,  as  well  as  with  non-governmental  organisations  active  in  the 
area of judicial reform and anti-corruption projects, with judges and prosecutors unions. The Commission 
also has a CVM resident adviser in Bucharest. 

3       In particular, the Council of Europe Group of States against Corruption (GRECO) issued a special report on 
the amendments on the justice laws in April 2018 (Greco-AdHocRep(2018)2) and the Venice Commission 
adopted two opinions in October 2018 on the amendments on the justice laws (Opinion 924/2018) and the 
amendments on the criminal codes and the code of criminal procedures (Opinion 930/2018). 

4    The most important being the developments in the Court of Justice case-law on judicial independence, the 
European  Court  of  Human  Rights  (ECtHR)  case-law  on  fair  trial  rights,  the  UN  Convention  Against 
Corruption, Venice Commission Reports on European standards as regards the independence of the judicial 
system, and the European Commission for the Efficiency of Justice (CEPEJ) indicators. 
5      Including the EU Justice Scoreboard: http://ec.europa.eu/justice/effective-justice/scoreboard/. 

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conditionalities  for  using  the  Funds).  Over  the  years,  Romania  has  also  benefited  from  bilateral 
support from EU Member States.6 

The CVM Commission Decision of 2006 defined four benchmarks for Romania. The four benchmarks 
were  conceived  in  the  circumstances  of  the  day  and  their  concrete  wording  reflects  this,  but  the 
underlying themes have remained fully relevant.  

On 25 January 2017, the Commission adopted a comprehensive assessment of ten years’ progress in 
Romania on judicial reform and the fight against corruption. This report used a long-term perspective 
to  identify  the  key  remaining  steps  to  reach  the  goals  of  the  CVM.  Most  of  them  focus  on  the 
responsibility and accountability required by the Romanian authorities and on the internal safeguards 
needed to ensure that progress achieved is irreversible. When these steps set out under a benchmark 
are taken, the respective benchmark will be considered provisionally completed. When this applies to 
all benchmarks, the CVM will be closed. This process resulted in twelve final recommendations set 
out in the January 2017 CVM report. Complying with the twelve recommendations can therefore be 
considered as sufficient to meet the CVM goals – except if developments were to clearly reverse the 
course of progress underlying the baseline assessment of January 2017. 

On  15  November  2017,  the  Commission  adopted  its  report  on  the  Cooperation  and  Verification 
Mechanism  focusing  on  the  progress  under  each  of  the  key  remaining  recommendations,  also 
including  where  necessary,  an  assessment  of  developments,  which  could  call  into  question  previous 
positive evaluations. This last report concluded that: “During the nine-month period since the January 
2017  report  setting  out  the  key  recommendations  to  fulfil  all  CVM  benchmarks,  progress  has  been 
achieved  on  a  number  of  recommendations,  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. 

On  this  basis,  though  progress  has  brought  some  benchmarks  closer  to  the  point  of  fulfilment,  the 
Commission cannot yet conclude that any of the benchmarks are at this stage satisfactorily fulfilled. “7 

2. 

PROGRESS ON KEY REMAINING STEPS 

In  the  November  2017  report,  the  focus  was  able  to  remain  strongly  on  the  key  remaining  steps 
identified in the January 2017 CVM report and the actions taken by the Romanian authorities to fulfil 
the recommendations. However, given developments since January 2017 and as set out in the report 
from  the  Commission,  it  is  also  necessary  to  set  out  broader  issues,  which  could  have  a  bearing  on 
whether the progress underlying the baseline assessment of January 2017 has been compromised.  

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 

Since  the  November  2017  report,  there  have  been  a  number  of  developments  with  important 
implications  across  Benchmark  1.  These  are  summarised  here  before  looking  specifically  at  the 
recommendations under this benchmark. 

Justice laws 

The  three  Justice  laws  adopted  in  2004  define  the  status  of  magistrates  and  organise  the  judicial 
system  and  the  Superior  Council  of  Magistracy.8  They  are  therefore  central  to  promoting  the 

6      Funding from the European Economic Area (Norway) further complements national and EU funding for 

judicial reform. 
7      COM(2017)751, p.12. 
8     Law 303/2004 on the Statute of magistrates; Law 304/2004 on Judicial organisation; Law 317/2004 on the 

Superior Council of Magistracy 

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independence  of  magistrates  and  the  good  functioning  of  the  judiciary.  The  Justice  laws  were  an 
essential  basis  for  the  positive  assessment  of  the  progress  of  Romania  in  the  January  2017  CVM 
report. 

At  the  time  of  the  November  2017  report,  the  amendment  process  for  the  three  Justice  laws  in 
Parliament had just started. The report warned that some of the proposed changes concerned judicial 
independence  and  raised  questions  about  whether  the  January  2017  assessment  would  have  to  be 
reconsidered.  The  Commission  emphasised  that  the  the  provision  by  the  Government  and  the 
Parliament of an open, transparent and constructive legislative process on the Justice laws would be 
crucial. This echoed the view of the Council of Europe Consultative Council of European Judges on 
the importance of involving the judiciary in the preparation of legislation.9  

The laws as amended by the Parliament have been promulgated by the President of Romania. At the 
time  of  writing  this  report  further  changes  were  introduced  ex-post  in  Government  Emergency 
ordinances10,  delaying  very  selectively  the  entry  into  force  of  certain  provisions  criticised  by  the 
Venice Commission but otherwise accentuating some of the problems already highlighted. The Venice 
Commission opinion on the Justice laws concludes that “Although welcome improvements have been 
brought  to  the  drafts  following  criticism  and  a  number  of  decisions  of  the  Constitutional  Court,  it 
would be difficult not to see the danger that, together, these instruments could result in pressure on 
judges  and  prosecutors,  and  ultimately,  undermine  the  independence  of  the  judiciary  and  of  its 
members  and,  coupled  with  the  early  retirement  arrangements,  its  efficiency  and  its  quality,  with 
negative consequences for the fight against corruption”.11 

Beyond  the  most  problematic  changes  pointed  out  by  the  Venice  Commission  opinion,  there  are 
changes in the Justice laws regarding the practical organisation of the courts and prosecution offices 
and  the running  of judicial  proceedings  which  have  been introduced  without  impact  assessment  and 
where  the  future  impact  of  those  changes  on  the  effectiveness  of  the  judicial  system  is  therefore 
difficult to establish.   

Concerns with the content of the Justice laws 

The  extent  of  the  amendments  of  the  three  Justice  laws  is  considerable.  Many  amendments  were 
important  amendments  modernising  certain  human  resources  aspects  (such  as  addressing  long-term 
sickness or promotions) and had been discussed within the judicial system since 2015. Other changes 
were deemed necessary to align the laws with Constitutional Court decisions.  

However,  other  amendments  have  been  the  source  of  major  concern  amongst  the  magistracy  and 
observers  including  civil  society.  A  number  of  these  amendments  could  open  the  door  to  putting 
pressure  on  judges  and  prosecutors  and  hence  undermining  the  independence  of  the  judiciary.  This 
also includes a greater potential for inference in individual cases. These concerns have been echoed by 
GRECO and the Venice Commission. In its opinion, the Venice Commission has singled out a number 
of aspects in the laws "which seen alone, but especially taking into account their cumulative effect in 
the  complex  political  context  currently  prevailing  in  Romania,  are  likely  to  undermine  the 
independence of Romanian judges and prosecutors, and the public confidence in the judiciary." 12 

Several  problematic  amendments  affect  the  independence  of  magistrates  and  limit  the  role  of  the 
Superior Council of Magistracy, the guarantor of the independence of the judiciary:  

  The new system for appointment and dismissal of Chief Prosecutors and the role of the Minister of 

Justice (see below); 

  Limits on the freedom of expression and information. Firstly, an amendment requires magistrates 
to  refrain  from  "defamatory  manifestation  or  expression  against  the  other  powers  of  the  state". 

9      The position of the judiciary and its relation with the other powers of state in a modern democracy stated 
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”. Opinion No 18 (2015). 

10   Emergency Ordinance 92/2018, Emergency ordinance 90/2018. 
11     Venice Commission, Opinion 924/2018 - paragraph 164. 
12     Venice Commission, Opinion 924/2018 - paragraph 161. 

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Whilst a general duty of restraint is understandable, highlighting a special protection for other state 
powers puts into questions the capacity for magistrates  to express views on issues and legislative 
changes affecting the functioning of justice. This could even affect the role of the SCM to defend 
judges and prosecutors from public statements from other state bodies, which may damage judicial 
independence. Secondly, there is a concern that an amendment to the Criminal Procedure Code will 
prevent public authorities and courts from providing information about criminal proceedings. This 
may be detrimental to the right of the public (and possible victims) to be informed. 

  New provisions dealing with the material liability of magistrates.  These provisions have been seen 
as  opening  a  possibility  to  be  used  as  a  means  to  put  pressure  on  magistrates.  They  open  the 
possibility  for  the  Ministry  of  Finance  to  launch  regress  action  against  a  magistrate  for  judicial 
error,  on  the  basis  of  its  own  assessment,  with  a  consultative  role  for  the  Judicial  Inspection.  A 
decisive role in determining action is given to the Judicial Inspection and the Ministry of Finance, 
rather  than  to  the  Superior  Council  of  the  Magistracy  (given  its  responsibilities  both  for  judicial 
independence and disciplinary liability). 

  A new department for investigating criminal offences committed by magistrates. The establishment 
of this new department could be seen as an (additional) instrument to put pressure on judges. The 
rationale for a special treatment of magistrates compared to other office holders and civil servants 
has not been made clear. In addition, the National Anti-Corruption Directorate (DNA) already has 
an  established  solid  track  record  in  investigating  and  prosecuting  cases  of  corruption  within  the 
magistracy. 

  The  revocation  of  members  of  the  Superior  Council  of  Magistracy.  The  possibility  of  revoking 
SCM  members  through  a  non-confidence  vote/petition  from  courts  and  prosecution  offices  risks 
upsetting  the  balance  between  the  accountability  and  the  stability  and  independence  of  SCM 
members.13 

  The removal of the previous reference to the independence of prosecutors in their statute. Taking 
into  account  the  cumulative  effect  with  other  measures  and  given  the  complex  political  context 
currently prevailing in Romania, this further tends toward reinforcing hierarchical control and the 
authority  of  the  Minister  of  Justice  and  entails  a  risk  of  giving  way  to  political  interference  in 
criminal cases.14  

In addition, amendments such as the incentive to early retirement15 and the increased training period 
for entry into magistracy16 create serious risks of disruption of the human resources management in the 
judiciary,  with  consequences  on  its  efficiency  and  quality.  Several  other  changes  are  less  obviously 
problematic  but  could  affect  the  daily  operations  of  the  courts  and  prosecution  offices  and  the 
challenges resulting from their introduction seems not to have been thought through.17 The individual 
and cumulative impacts of the changes have not been subject to impact assessment whereas many of 
the changes have implications in terms of managerial, human and financial resources. 

13     Emergency Ordinance EOG 92/2018 further modifies the provisions on revocation of SCM members 
14      While  the  Venice  Commission  has  acknowledged  that  there  are  no  common  standards  requiring  more 
independence of the prosecution system, and that “a plurality of models exist”, only a few of the Council of 
Europe  member  states  have  a  prosecutor’s  office  under  the  executive  authority  and  subordinated  to  the 
Ministry of Justice (e.g. Austria, Denmark, Germany, the Netherlands) and “a widespread tendency to allow 
for a more independent prosecutor’s office, rather than one subordinated or linked to the executive” may be 
observed.  "Specifically,  with  respect  to  Romania,  the  Venice  Commission  has  underlined  the  need  to 
increase the independence of the prosecutors" (Opinion 924/2018). 

15    Retirement after only 20 years of service with a slightly reduced pension (and no age requirement) 
16    The amendment increases the duration of the training period at the National Institute of Magistracy (NIM) 
from two to four years, and the probationary period from one to two years. This means a possible gap of 
four  years  for  admitting  judges  and  prosecutors  via  the  NIM.  Creating  new  avenues  for  entry  into 
magistracy for filling the gap creates other risks. Successive CVM reports have recognised that having the 
large  majority  of  magistrates  recruited 
the 
professionalization and independence of the Romanian magistracy. 

importantly  contributed 

the  NIM  has 

through 

to 

17     Examples include changes regarding the number of judges in panels and the rules for delegation of staff.  

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These concerns were already reflected in the conclusions and recommendations of the GRECO report 
of March 201818, and have now been further confirmed in the conclusions of the opinion of the Venice 
Commission  of  20  October  2018.    The  Venice  Commission  has  also  issued  recommendations  for 
Romania in order to address the problems identified with the laws. 19 

The introduction of the Justice laws 

In  August  2017,  the  Minister  of  Justice  presented  the  main  lines  of  the  planned  amendments  to  the 
three  laws.  In  October  2017,  the  Parliament  started  the  debate  over  three  new  legislative  initiatives 
concerning the three laws, on the basis of drafts tabled by Members of Parliament. The amendments 
were  adopted  at  the  end  of  December  2017  by  the  Romanian  Parliament.  An  overall  process  of  a 
potential reform of the three laws had been considered starting 2015, but those previous drafts have 
been eventually abandoned to promote the new amendments, with an accelerated adoption process in 
Parliament. The slow progress on the 2015 amendments raised further questions as to why the 2017 
process was considered so urgent. The amendments were processed by a special joint committee of the 
two chambers of Parliament set up for this particular purpose. 

Because of the accelerated parliamentary procedure, the opportunities for the proposed amendments to 
these  key  Justice  laws  to  be  subject  to  consultations  with  magistrates,  other  stakeholders  and  civil 
society  were  few.  Many  key  judicial  interlocutors  sought  nevertheless  to  give  a  view  and  their 
conclusions were often highly critical. This included two negative opinions from the SCM, opinions of 
the High Court for Cassation and Justice, and a request for the withdrawal of the draft amendments 
signed  by  almost  4,000  magistrates,  as  well  as  street  protests  and  warnings  from  civil  society.  This 
also included calls to postpone the adoption process of the amendments until after an evaluation of the 
Venice  Commission  that  could  have  recommended  practical  solutions  to  address  the  most 
controversial issues raised by  the  proposed  amendments. The Venice  Commission  regretted  that  the 
current process could not benefit from such a wide and comprehensive debate.20 

The adopted amended laws have been challenged several times before the Constitutional Court, by the 
President  of  Romania, the opposition  parties in  Parliament,  as  well as the  High Court for  Cassation 
and Justice. The challenges have addressed potential constitutional issues, but constitutionality checks 
do not cover other issues regarding potential impacts on the quality and efficiency of the functioning 
of courts and prosecutor's offices. 

In  its  initial  recommendations,  and  also  in  the  November  2017  report,  the  Commission  had 
emphasised the role of the Venice Commission. However, it was not until April 2018 that the Venice 
Commission was seized, and then by the Parliamentary Assembly of the Council of Europe rather than 
the Romanian authorities. The opinion on the amended Justice laws by the Venice Commission seems 
to have had no impact on the accelerated timetable for the laws and has not been the subject of debate 
in  Parliament.  The  result  is  that  the  recommendations  of  the  Venice  Commission  came  when  the 
avenues for referral had been exhausted. The President was required to promulgate the laws: the law 
on judicial organisation was promulgated in July, the law on the Superior Council of Magistracy was 
promulgated in September and the law on the status of magistrates was promulgated in October.   

As  soon  as  the  law  on  the  judicial  organisation  was  promulgated,  the  High  Court  of  Cassation  and 
Justice was criticised for not changing the appeal panels in line with the new law.21 The controversy 
was amplified when the Judicial Inspection announced the start of a possible disciplinary investigation 
against  the  President  of  the  High  Court  at  end  of  August.    At  the  beginning  of  October,  the 
Government referred the High Court to the Constitutional Court invoking a constitutional conflict with 
the Parliament regarding to the implementation of the amended law on judicial organisation.22  

18     On the basis of the amendments adopted by Parliament in December 2017 - Greco-AdHocRep(2018)2. 
19     On the basis of the amended laws as promulgated - Venice Commission Opinion 924/2018 
20    Venice Commission, Opinion 924/2018 – paragraph 158  
21   The issue concerns the composition of criminal appeal panels.  
22      https://www.ccr.ro/noutati/COMUNICAT-DE-PRES-329.    The  conflict  also  refers  to  the  constitution  of 
appeal panels since 2013. The Constitutional Court ruled on 7 November 2018, admitting the conflict. The 
motivation of the ruling has not yet been published. 

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On 10 October, the Government adopted an emergency ordinance in relation to interim measures for 
setting  up  the  new  special  prosecution  department  for  investigating  magistrates.23  It  modifies  ad 
interim the rules and criteria for appointing the Chief Prosecutor, the deputy and the prosecutors of the 
department.24 This seemed in conflict with one of the arguments used earlier in the year to reassure 
critics  of  the  department  -  that  the  organisation  of  the  appointments  would  fall  entirely  under  the 
competence  of  the  Superior  Council  of Magistracy  and  offer important  procedural  guarantees.  In  its 
opinion the Venice Commission had noted the importance of procedural guarantees such as a project-
based competition for the Chief Prosecutor and the involvement of the Plenum of the SCM (i.e. judges 
and  prosecutors)  in  the  appointments.25  The  SCM  applied  the  modified  rules  of  the  emergency 
ordinance  and  the  President  of  the  SCM  issued  a  statement  on  23  October  when  the  department 
entered into operations.26 

On  15  October,  the  Government  adopted  another  emergency  ordinance,  modifying  the  law  on  the 
status  of  magistrates.27  This  text  postpones  the  entry  into  force  of  the  provisions  on  the  early 
retirement of magistrates until 1 January 2020 and holds the implementation of the provisions on the 
composition  of  three  judges'  panels.  At  the  same  time,  it  adds  further  seniority  conditions  for 
prosecutors  in  in  the  National  Anti-Corruption  Directorate  and  the  Department  for  investigating 
Organised  Crime  and  terrorism  by  adding  a  compulsory  experience  of  10  years.  In  addition  to 
postponing the entry into force of certain problematic provisions (but not removing them all together) 
the  Emergency  Ordinance  changes  the  rules  for  the  organisation  of  the  prosecution  services  and 
consolidates  the  power  of  the  Minister  of  Justice  to  trigger  disciplinary  proceedings  specifically 
against prosecutors.28  

Cooperation between the intelligence services and the judicial institutions 

A  particular  debate  has  arisen  concerning  the  cooperation  in  criminal  cases  between  the  Romanian 
Intelligence  Service  (‘SRI’)  and  various  judicial  institutions,  including  the  DNA  and  the  General 
Prosecutor’s Office. In particular, it has been claimed that classified cooperation protocols concluded 
between SRI and various judicial institutions have led to widespread abuses and the illegal gathering 
of  evidence  in  criminal  proceedings,  notably  related  to  technical  surveillance  measures  such  as 
interceptions.  Given  the  role  of  the  courts  to  establish  whether  or  not  allegations  of  abuses  are 
substantiated and to decide on the legality of the evidence gathered on the basis of these protocols in 
criminal cases, as of today no court decision clearly upholding those claims has been reported to the 
Commission services. 

While  the  operation  of  the  national  intelligence  services  and  the  democratic  control  thereof  is  not  a 
matter of EU competence, 29 the debate has relevance for the CVM process in the sense that arguments 
raised in this debate have been cited as a justification for the changes in both the Justice laws and the 
Criminal  Code  and  Code  of  Criminal  Procedures.30  Senior  political  figures  have  also  used  them  as 

23   The Emergency Ordinance 90/2018 on measures to operationalise the Department for the investigation of 
offences  committed  by  magistrates  modifies  the  justice  law  on  judicial  organisation  (amended  law 
304/2004) which entered into force in July 2018 

24   Changes  concern  the  panel  for  the  selection  (at  least  3  members  instead  of  4  –  in  practice  there  were  3 
judges  and  no  prosecutor),  documents  to  be  provided  (only  a  letter  and  any  other  documents  considered 
relevant for the Chief Prosecutor post rather than a project based competition ), publicity of the documents 
provided  by  the  candidates  is  no  longer  obligatory,  change  of  selection  criteria  for  the  prosecutors  of  the 
section, appointment to be made by the President of the SCM rather than the plenum of the SCM. 

25    Venice Commission opinion 924/2018 – paragraph 85 – 87. 
26     https://www.csm1909.ro/299/6185/COMUNICAT-DE-PRES%C4%82-privind-opera%C5%A3ionalizarea-

Sec%C5%A3iei-pentru-investigarea-infrac%C5%A3iunilor-din-justi%C5%A3ie - (23.10.2018) 

27   Emergency Ordinance 92/2018.   
28    The Minister of Justice had powers to launch disciplinary proceedings against all magistrates in another law 
from  2012,  which  then  was  repealed  by  the  amended  Justice  laws.  The  Emergency  Ordinance  now  re-
instated the power to trigger disciplinary proceedings by the Judicial Inspection specifically for prosecutors. 
29    In accordance with the Treaties (notably Article 4 TEU), the responsibility for national security belongs to 

Member States. 

30    The possibility of adopting further measures, possibly of legislative nature, that would enable defendants in 
criminal  cases  where  surveillance  measures  based  on  the  above-mentioned  protocols  were  used,  to  seek 

7 

 
 
                                                           
core arguments in the public criticism of magistrates and judicial institutions. In early October 2018, 
the  Chamber  of  Deputies  filed  an  action  with  the  Constitutional  Court  invoking  a  possible 
constitutional  conflict  between  the  Public  Ministry  (the  General  Prosecutor’s  Office)  and  the 
Parliament in relation to these protocols.  

From  the information  that became  public  in  2018, it appears that the  collaboration  between  the  SRI 
and  the  judicial  system  was  regulated  in  various  laws,  which  were  in  place  before  the  accession  of 
Romania to the EU and stipulated a strict separation of the role of the prosecution and the technical 
support from the Intelligence services. The Senate is responsible for oversight of the security services 
in Romania, with annual reports from the SRI.    

Practical  arrangements  for  these  collaborations  were  later  laid  down  in  technical  agreements  (the 
protocols) referring to the laws regulating the collaborations.31 According to judicial authorities, these 
protocols  were  classified  at  the  request  of  the  SRI.  The  main  document  subject  to  controversy  is  a 
cooperation protocol concluded in 2009 between the Prosecutor General and the SRI.32 The Protocol 
was  declassified  in  2018  and  is  now  in  the  public  domain.  It  sets  out  a  number  of  principles  and 
technical provisions concerning the operational cooperation between SRI and the prosecution, notably 
with  regard  to technical surveillance  measures taken during  criminal  proceedings  at  the  initiative  of 
the prosecutor, in accordance with the Criminal Procedure Code, as well as with regard to information 
exchange  regarding  notifications  from  the  SRI  in  relation  to  indications  of  a  possible  crime  to  be 
followed up by the prosecutors. Other protocols signed with the courts contained provisions to ensure 
the confidentiality of the exchange of information concerning judicial warrants.  
In February 2016, the Constitutional Court issued a decision33 regarding technical surveillance actions 
implemented  by  the  SRI.  These  technical  surveillance  interventions  required  a  mandate  issued  by  a 
judge on the request of a prosecutor.34 The national authority for wiretapping was a department within 
the  SRI  owning  the  technical  platforms  for  such  operations.  In  its  decision  the Constitutional  Court 
declared unconstitutional a provision of the Criminal Procedure Code which allowed ‘other specialised 
state  bodies’  (i.e.  other  than  the  prosecutors  and  law  enforcement  agents)  to  enforce  technical 
surveillance  mandates  upon  request  of  the  prosecutor.35  To  fill  the  gap,  the  government  adopted  an 
emergency  ordinance  putting  the  technical  surveillance  function  in  the  hands  of  specialised  police 
within the prosecution services and setting up a “Chinese wall” between the management of the tools 
by  the  SRI  and  the  requests  of  the  prosecution.36  This  was  noted  in  the  January  2017  CVM  report. 
Commission  services  had  also  previously  discussed  with  the  DNA  the  sources  of  their  signals, 
including from the SRI, where DNA underlined that these notifications could not be used as evidence, 
and that prosecutors still had to gather the evidence necessary to demonstrate the existence of a crime. 
The January 2017 report noted that the DNA had explained that, as public confidence in their work 
increased, over 80% of signals came from the  general public and therefore their reliance on the SRI 
and other public authorities had diminished.37 

This debate is also linked to the question of fair trial rights in criminal proceedings. The Commission 
had noted that the issue of respect of fair trial rights was often used as an argument in public debates to 
criticise  the  judiciary  and  advocate  for  changes  in  the  (corruption)  laws.38  Successive  CVM  reports 

redress,  be  it  within  the  framework  of  ongoing  criminal  proceedings  or  even  in  cases  where  final  court 
judgments have been rendered, has also been mentioned regularly in the debate. 

31     It has been reported to the Commission that no court has ruled that such protocols were illegal.  
32     http://www.mpublic.ro/sites/default/files/PDF/protocol_declasificat.pdf 
33   Constitutional Court Decision 51/2016 of 16 February 2016. 
34      DNA  reports  that  from  January  1,  2005  –  February  16,  2016,  24,576  technical  surveillance  mandates  or 

technical mandates to authorise interception of communications were dispatched, covering 36.406 people.  

35      Provision  art.  142  alin.  (1)    of  the  Criminal  Procedure  Code  "  The  prosecutor  shall  enforce  an  electronic 
surveillance measure or may order that this be enforced by criminal investigation bodies or by specialized 
employees of the law enforcement bodies or of other specialist bodies of the state" 

36     This Emergency Ordinance (EOG 6/2016) needs to be adopted by Parliament to become definitive and this 

is now the subject of debate in the Chamber of Deputies.  
37     CVM report January 2017 – technical report SWD(2017)25 p35 
38     CVM report January 2017 – technical report SWD(2017) 25 p17 

8 

 
 
                                                                                                                                                                                     
have highlighted that respect of fair trial rights in line with the case law of the Court of Justice and the 
European  Court  of  Human  Rights  is  an  essential  element  of  the  criminal  codes  and  the  criminal 
judicial proceedings, and that trust in the respect of fair trial rights in another country are the basis for 
judicial cooperation in criminal matters and mutual recognition. CVM reports therefore welcomed the 
entry  into  force  of  the  new  Criminal  Code  and  Criminal  Procedure  Code  in  2014  as  increasing 
guarantees for the rights of suspects, defendants and also the victims of crimes.39 The Commission had 
also been informed by the European Court of Human Rights (ECtHR) and the Council of Europe that 
many applications to the ECtHR alleging a violation of fair trial rights by the prosecution services (in 
corruption cases) had not been admitted. Some proceedings are now ongoing and the results may have 
a bearing on whether or not there is a need to amend the Criminal Code or Criminal Procedure Code.  

A further issue in the public debate concerns allegations of infiltrated intelligence service agents in the 
justice system. The CVM report of January 2017 mentioned the issue and the verification steps made 
by the Superior Council of Magistracy and the CSAT (the Supreme National Defence Council). Both 
institutions  denied  that  there  were  infiltrated  agents  in  the  justice  system.  The  law  clearly  forbids  a 
situation where intelligence service agents would be embedded in the justice system, as incompatible 
with  the  statute  of  magistrates.  The  amendments  of  the  Justice  laws  reinforce  this  prohibition  and 
require  that  annual  declarations  of  magistrates  will  be  verified  annually  by  the  CSAT,  as  all 
magistrates  have  to  make  declarations  on  an  annual  basis  that  they  are  not  an  informant  or 
collaborator of the intelligence services.  The Venice Commission opinion notes that there is a lack of 
clarity in these terms and a risk that an annual check might be inappropriate or even infringing on their 
independence if not coupled with adequate procedural safeguards and a right of appeal in court.40 

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.  

The January 2017 report reiterated previous recommendations to put in place a system of  transparent 
and merit-based appointments of top prosecutors which would ensure appropriate safeguards in terms 
of  independence  and  checks  and  balances.  Successive  CVM  reports  had  highlighted  the  need  for 
sufficient checks and balances in the procedure, as well as the extent to which the same appointment 
and dismissal procedure would apply at lower management level within the prosecution. 

The  November  2017  report  had  underlined  the  lack  of  progress,  but  noted  that  amendments  to  the 
procedure  could  still  be  envisaged  in  the  ongoing  amendment  of  the  Justice  laws.  The  report  also 
recalled the requirement to call on the advice of the Venice Commission. 

The appointment of the top rank of prosecutors is regulated by Justice law 303/2004 on the status of 
magistrates, as amended this year. The appointment procedure (applicable for the Prosecutor General 
and  deputies,  DNA  chief  prosecutor,  deputies,  and  heads  of  sections,  as  well  as  the  DIICOT  chief 
prosecutor and deputies) has been amended by limiting the Romanian President’s right to refuse the 
proposal of the Minister of Justice to only once after the (consultative) opinion of the SCM’s section 
for prosecutors. There were no changes in the selection process itself, which remains entirely in the 
hands  of  the  Minister  of  Justice.  The  result  enhances  the  power  of  the  Minister  of  Justice  and 
represents  an  additional  limitation  of  the  weight  and  relevance  of  the  SCM  opinion,  given  that  the 
President is bound to appoint the second candidate proposed by the Minister of Justice, irrespective of 
the profile of that candidate and the SCM opinion. 
Serious  concerns  about  this  new  procedure  were  expressed  by  GRECO  in  March  201841  and  the 
Venice Commission42:  "This new rule can therefore only be considered as a step backwards, reducing 
the independence of the leading prosecutors. This is particularly worrying in the context of the current 
tensions between prosecutors and some politicians, due to the fight against corruption. If the leading 

39    CVM report 2016 – technical report SWD(2016) 16 p11-12;  CVM report January 2017 – technical report 

SWD(2017) 25 p17 – 18. 

40    Venice Commission, Opinion 924/2018 – 106. 
41    Greco-AdHocRep(2018)2 
42    Venice Commission, Opinion 924/2018 - paragraph –54. 

9 

 
 
 
                                                           
prosecutors depend for their appointment and dismissal on a Minister, there is a serious risk that they 
will not fight in an energetic manner against corruption among the political allies of this Minister." 

In the selection procedures for the appointment of the DIICOT Chief Prosecutor, in June 2018, and of 
the DNA chief prosecutor, in August-October, selection criteria have been published,43 (although not 
set by law which would provide for a better guarantee).44 It is however not clear how they were taken 
into account in the evaluation and final decision by the Minister of Justice.45   

The predominant power of the Minister of Justice in the appointment procedure was illustrated by the 
dismissal  and  appointment  process  for  the  DNA  Chief  Prosecutor.  This  is  a  post  of  high  public 
interest,  with  the  DNA  responsible  for  cases  of  high-level  corruption,  and  indeed  of  particular  EU 
interest, given the DNA’s responsibility for cases involving EU funds.  

However,  in  February  2018,  the  Minister  of  Justice  started  the  revocation  procedure  of  the  Chief 
Prosecutor of the DNA, based on an evaluation report carried out by the Minister himself.46 The report 
mainly  raised allegations  of  bad  management,47  one  of  the  reasons  provided  by  the  law  as  potential 
grounds  for  dismissal.  The  SCM  issued  a  negative  opinion  against  the  proposal  for  dismissal, 
considering  that  the  grounds  for  dismissal  presented  by  the  Minister  were  insufficient  and  the 
allegations of mismanagement not substantiated.48 The President of Romania, taking also account of 
the SCM opinion, found the dismissal proposal groundless and unjustified and rejected it at the end of 
April. 49  

Subsequently  the  Government  seized  the  Constitutional  Court,  on  the  grounds  of  a  conflict  of 
constitutional nature between the Government and the President. The Constitutional Court decided in 
favour  of  the  Government  and  ruled  that  the  President  can  only  refuse  the  Minister  of  Justice’s 
dismissal  proposal  on  matters  of  legality  and  not  on  merits  or  opportunity,  irrespective  of  the  SCM 
opinion.50 Applying the Constitutional Court decision, the President of Romania dismissed the DNA 
Chief prosecutor on 9 July 2018 

On 25 August 2018, the Minister of Justice also launched an evaluation of the management activity of 
the Prosecutor General, the same procedure as in the sequence which led to the dismissal of the Chief 
Prosecutor of the DNA. On 24 October 2018, the Minister of Justice presented his evaluation report on 
the  Prosecutor  General,  and  launched  the  request  for  his  dismissal.51    This  move  triggered  a  strong 
reaction  within  the  magistracy,  with  over  1000  judges  and  prosecutors  requesting  the  Minister  of 

43      Selection  criteria  for  the  DNA  Chief  Prosecutor:  http://www.just.ro/ministerul-justitiei-organizeaza-in-
perioada-09-30-07-2018-selectia-procurorilor-in-vederea-efectuarii-propunerii-de-numire-in-functia-
vacanta-de-procuror-sef-al-directiei-nationale-antic/  

44     EOG 92/2018 adds requirements of publicity of the interview with the Minister of Justice. 
45    The candidate for Chief Prosecutor of DIICOT was selected by the Minister of Justice over the incumbent 
Chief  Prosecutor  following  an  interview  (in  a  panel  with  Secretaries  of  State).  The  candidate  received  a 
positive evaluation by the SCM and he was appointed by the President of Romania. 

46     Evaluation published by Minister of Justice on 22 February 2018  http://www.just.ro/comunicat-de-presa-

raportul-privind-activitatea-manageriala-la-dna/  

47    A management control had been performed by the judicial Inspection. The SCM had examined the report but 
found  no  major  deficiencies  in  management,  proposing  a  six-month  period  to  implement  certain 
recommendations with regard to identified weaknesses.  The implementation of these recommendations was 
not finalised when the Minister launched the dismissal procedure.  

48   http://old.csm1909.ro/csm/linkuri/16_03_2018__90840_ro.pdf. 
49      Decision  of  President  of  Romania  of    16  April  2018  (http://www.presidency.ro/ro/media/declaratii-de-

presa/declaratia-de-presa-sustinuta-de-presedintele-romaniei-domnul-klaus-iohannis)  

50     CCR decision no 358 of 30 May 2018. 
51     The  arguments  of  the  Minister  of  Justice  include  "a  lack  of  management  reaction  from  the  Prosecutor 
general  with regard to the  failures of the  DNA" (which the  Minister of Justice had invoked to justify  the 
dismissal  of  the  DNA  Chief  prosecutor)  and  "public  statements  of  the  Prosecutor  General  of  a  political 
character"  when  criticising  the  Parliament  and  the  Government  policies  with  regard  to  the  judiciary  and 
instances of political pressure on the judiciary, as well as "problems of legality of his appointment". 

        http://www.just.ro/raport-privind-activitatea-manageriala-a-procurorului-general-al-romaniei/ 

10 

 
 
                                                           
Justice  to  abandon  this  request.52  The  dismissal  request  will  be  examined  by  the  SCM  on  20 
November. 

The  CVM  recommendation  specifically  calls  on  Romania  to  draw  on  the  advice  of  the  Venice 
Commission. In its opinion of 20 October 2018, the Venice Commission notes that the Constitutional 
Court decision “gives the Minister of Justice the crucial power in removing high-ranking prosecutors, 
while  confining  the  President  in  a  rather  ceremonial  role,  limited  to  certifying  the  legality  of  the 
relevant  procedure.  The  weight  of  SCM  […]  is  also  considerably  weakened,  taken  into  account  the 
increased power of the Minister of Justice and the limited scope of influence that it may have on the 
President’s  position  (only  on  legality  issues)”.53,54  The  Venice  Commission  concluded  that  it  was 
necessary  to  change  this  situation, even  if  this  required  a  change  to  the  Constitution:  “the  judgment 
leads to a clear strengthening of the powers of the Minister of Justice with respect to the prosecution 
service, while on the contrary it would be important, in particular in the current context, to strengthen 
the  independence  of  prosecutors  and  maintain  and  increase  the  role  of  the  institutions,  such  as  the 
President  or  the  SCM,  able  to  balance  the  influence  of  the  Minister.  […]To  strengthen  the 
independence of the prosecution service and individual prosecutors, one key measure would therefore 
be to revise, in the context of a future revision of the Romanian Constitution, the provisions of Article 
132  (1)  of  the  Romanian  Constitution.  At  the  legislative  level,  it  could  be  considered,  as  far  as 
dismissal is concerned, to amend Law no. 303 in such a way as to give to the opinion of the SCM a 
binding force.”55   

Given that the dismissal procedure mirrors the one for the appointment, it may  be the case that this 
new interpretation of the Constitutional Court would also apply to the appointment procedure.  

For the new appointment of the DNA Chief Prosecutor, a first set of candidates, many with relevant 
experience, was initially rejected by the Minister of Justice following an interview in July. No detailed 
reasoning was provided. A candidate from a second selection process launched in August was selected 
by  the  Minister  of  Justice.  The  SCM  gave  a  negative  opinion  on  the  candidate  at  the  beginning  of 
October  (see  also  recommendation  10).  In  its  reasoning,  the  SCM  section  of  prosecutors  mentioned 
low resistance to stress, low analytical and synthesis capacity, a lack of clarity in adherence to values 
such as honesty and impartiality and a submissive ideological attitude inconsistent with the needs of 
the job.56 The Minister of Justice took no account of this negative opinion and proposed the candidate 
for approval by the President of Romania.   

The same appointment procedure applies for all deputy and heads of sector positions within the DNA, 
and the Minister of Justice has already initiated new procedures in this regard. The new legislation and 
the way the rules have been applied recently  open the possibility that the whole hierarchy within the 
DNA could be removed and replaced with prosecutors selected by the Minister.    

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. 

Past  CVM  reports  have  acknowledged  that  the  successful  prosecution  and  conviction  of  many 
prominent figures in Romania is a sign of judicial independence, showing that high office holders and 
prominent personalities are not beyond the law if they have committed a crime. However, they have 

52     https://www.romaniajournal.ro/two-magistrates-associations-urge-toader-to-immediately-abandon-the-

revocation-procedure-of-prosecutor-general-lazar/ 
53   Venice Commission opinion 924/2018 - Paragraph 58 
54    The Venice Commission also points out that the impact of the Constitutional Court decision  of  30 May 
2018  is  likely  to  have  wider  consequences  on  the  statute  of  prosecutors  in  general  since  it  also  contains 
elements  of  interpretation  of  constitutional  provisions  concerning  the  relationship  between  prosecution 
services and the executive and suggests a strengthening of the powers of the Minister of Justice in relation 
to prosecutors.   

55     Venice Commission opinion 924/2018 - Paragraph 61 
56     http://old.csm1909.ro/csm/linkuri/12_10_2018__92763_ro.pdf;  https://www.romania-insider.com/superior-

magistracy-council-report-adina-florea-dna/  

11 

 
 
                                                           
also  noted  that  this  work  has  triggered  a  reaction  in  terms  of  public  attacks  against  individual 
magistrates  or  the  judicial  institutions.  The  Committee  of  Ministers  of  the  Council  of  Europe  has 
recommended that the executive and legislative powers should avoid criticism that would undermine 
the independence of or public confidence in the judiciary.57 The Venice Commission has noted that: 
"Compliance with the rule of law cannot be restricted to the implementation of the explicit and formal 
provisions of the law and of the Constitution only",58 and the Commission recommendation sought to 
encourage the putting in place of a mechanism which could create more of a sense of responsibility for 
public statements and their consequences. 

A  new  Code  of  Conduct  for  parliamentarians  was  prepared  in  May  2017  and  was  adopted  by  both 
Chambers  of  Parliament  on  11  October  2017.59  The  Code  of  Conduct  does  not  specifically  mention 
respect  for  the  independence  of  the  judiciary  but  includes  a  general  provision  on  the  respect  of 
separation  of  powers.  "Deputies  and  senators  shall  exercise  their  mandate  in  accordance  with  the 
principle of the separation and balance of powers — legislative, executive, and judicial — within the 
framework of constitutional democracy." The Code includes a process and sanctioning mechanism in 
cases  of  breaches.  However,  as  the  provision  on  respect  of  separation  of  powers  is  very  general, 
establishing  breaches  and  imposing  sanctions  for  excessive  criticism  of  the  judiciary  may  require 
practical examples and guidelines. GRECO has noted how further implementation steps can help the 
practical application of such a Code.60  A specific opportunity exists in the form of decisions by the 
Superior  Council  of  Magistracy  against  statements  of  a  Member  of  Parliament  discrediting  a 
magistrate or the judicial system (see below), which could be used to automatically trigger follow-up 
in Parliament.  In the reporting period, no cases of application of the Code of Conduct for Members of 
Parliament have been reported. 
In  July  2017,  the  Government  adopted  a  Code  of  Conduct  for  Ministers,61  which  also  includes  a 
general  provision  on  the  respect  for  the  separation  of  powers.  As  with  the  Code  of  Conduct  for 
parliamentarians, the regime for application and sanctions is not set out in detail and has not yet been 
tested. 

In  the  reporting  period,  criticism  of  the judicial  system  and  individual  magistrates  in  the  media  and 
from the Government and the Parliament representatives has been particularly prevalent, in particular 
against the institutions dealing with high level corruption.   

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 SCM 
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. 

Criminal Code and Criminal Procedure Code 

The new Criminal Code and Code of Criminal Procedures entered into force on 1 February 2014. This 
was  a  successful  endeavour  from  both  the  Romanian  government  and  the  magistracy.  However,  a 
number of developments have called into question the stability of the Codes, and in some cases urgent 
amendments have been required. Governments since 2014 have proposed a number of amendments to 

57     Council of Europe, Recommendation CM/Rec(2010)12, para. 18.  
58        Venice  Commission,  Opinion  no.  685  /  2012,  CDL-AD(2012)026,    Opinion  on  the  compatibility  with 
Constitutional  principles  and  the  Rule  of  Law  of  actions  taken  by  the  Government  and  the  Parliament  of 
Romania in respect of other State institutions and on the Government emergency ordinance on amendment 
to the  Law  N° 47/1992 regarding the organisation and functioning of the  Constitutional Court and on the 
Government  emergency  ordinance  on  amending  and  completing  the  Law  N°  3/2000  regarding  the 
organisation of a referendum of Romania.  

59     https://www.juridice.ro/wp-content/uploads/2017/10/Codul-de-conduită.pdf.  
60    A similar analysis  was  made in the 4the  evaluation of the  Group of states  Against Corruption (GRECO): 
http://www.coe.int/t/dghl/monitoring/greco/evaluations/round4/Eval%20IV/GrecoEval4%282015%294_Ro
mania_EN.pdf 

61     http://gov.ro/ro/guvernul/sedinte-guvern/cod-de-conduita-al-membrilor-guvernulu.  

12 

 
 
                                                           
address shortcomings, which were consolidated in several draft laws in 2016 to ensure stability of the 
legal framework. These amendments have still to a large extent to be approved in Parliament.62 The 
Commission therefore recommended in January 2017 that the current phase of this reform needed to 
be  concluded,  with  Parliament  taking  forward  its  plans  to  adopt  the  amendments  presented  by  the 
government  in  2016  after  consultation  with  the  judicial  authorities  (Recommendation  3).  The 
Commission also recommended that 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. (See also recommendation 4 below). 

The November 2017 CVM report noted that the recommendation to conclude the current phase of the 
reform of Romania's Criminal Codes remained outstanding. Parliament had adopted none of the draft 
amendments proposed by the Government in 2016, which had been the result of broad consultations 
with the judiciary.  Parliament had however adopted other amendments to the Criminal Code, notably 
those with the effect of decriminalising conflict of interests. 

The  November  2017  report  further  mentioned  that  the  Ministry  of  Justice  had  started  to  propose 
amendments in relation to recent Constitutional Court decisions and transposition of EU Directives63 
through consultations with the judiciary, legal professions and civil society and the Government has 
indicated its intent to adopt relevant amendments. The Government adopted a draft law in this sense in 
November 2017, which was also sent to Parliament. In parallel, the Parliament had started to look into 
amendments  of  the  Criminal  Code  and  Criminal  Procedure  Code  within  the  Special  Parliamentary 
Committee  on  Systematisation,  Unification  and  Ensuring  Legislative  Stability  in  the  Judiciary.64 
Discussions on the criminal codes were stopped as the Parliamentary Committee started dealing with 
the amendments to the Justice laws instead. 

In  May  2018,  debates  on  the  amendments  of  the  Criminal  Code  and  Code  of  Criminal  Procedures 
resumed  on  the  basis  of  completely  new  drafts  and  a  very  high  number  of  amendments.  These 
amendments  were  different  from  the  draft  law  prepared  by  the  Government  in  2017  and  from  the 
amendments  adopted  by  the  Government  in  2016.  The  amendments  presented  in  the  Special 
Committee  in  May  were  adopted  by  Parliament  before  the  summer  break.  On  18  June  2018,  the 
Parliament adopted amendments to the Code of Criminal Procedures and on 4 July 2018 amendments 
to the Criminal Code. The amendments are a profound overhaul of the Codes of 2014, including in the 
procedural aspects  of  the  criminal  investigations  and trial,  and  in  the  criminal  policy  underlying  the 
codes. The amendments make major changes to the balance between, on the one hand, the rights of the 
suspects  and,  on  the  other  hand,  the  public  interest  to  sanction  serious  crime  and  the  rights  of  the 
victims. One example is the addition of very restrictive procedural constraints that risk undermining 
the investigation and sanctioning of fraud and corruption, but also all serious crimes, with the risk that 
major offences remain unpunished. In addition the amendments restrict the scope of corruption related 
offences. 

Supporters of the changes have argued that the changes are needed to increase the protection of the 
accused.  However, the Criminal Code and Code for Criminal Procedures which entered into force in 
2014 (building also on amendments of 2013) were already a major step in addressing earlier structural 
deficiencies which had been identified by the European Court of Human Rights, and allowed to close 
the monitoring from the Court on most issues in relation to fair trial rights in this regard.65 The entry 
into force of the criminal codes in 2014 further ensured the compliance of Romania with the Council 
of Europe Criminal Law Convention of Corruption and the UN Convention Against Corruption.  

62     CVM reports 2015, 2016, 2017 
63      Directive (EU) 2016/343 on the Presumption of Innocence, Directive on the freezing and confiscation of 
instrumentalities  and  proceeds  of  crime  in  the  European  Union  (Directive  2014/42/EU).  Romania  should 
have  implemented  the  Confiscation  Directive  by  4  October  2016.  On  8  November  2018  the  Commission 
addressed a reasoned opinion to Romania for not having fully communicated the national measures taken to 
implement the Directive.  

64     This special Committee was setup in October 2017 to set up a permanent dialogue between State institutions 
on  amendments  to  the  Criminal  Codes  and  other  important  legislation,  in  order  to  set  up  a  predictable 
amendment process, ensuring debate and public consultation. 

65     CVM report January 2017 

13 

 
 
                                                           
The revised Codes are not yet in force, but the amendments are of significance well beyond the CVM 
recommendation of January 2017, and indeed the CVM itself.66  The combined effect on the judicial 
system with the amendments of the Justice laws is also of relevance. The Constitutional Court ruled in 
October that a substantial number of the amendments are unconstitutional.67 

The amendments pending in Parliament since 2014, the subject of this recommendation, have not yet 
been adopted. One is under discussion in the legal Committee of the Chamber (decisional Chamber). It 
concerns  an  Emergency  Ordinance  adopted  in  2016  (6/2016)  in  relation  to  the  organisation  of 
(electronic)  surveillance  mandates  within  the  prosecution  services  following  a  Constitutional  Court 
Decision of 2016 annulling the possibility within the Code of Criminal Procedure to rely on technical 
services  from  the  Romanian  Intelligence  Services  to  perform  the  technical  surveillance  under  the 
authority of the prosecutor. The Ordinance was adopted after consultation of the competent authorities 
and  put  forward  technical  solutions,  which  would  allow  the  operational  continuity  of  ongoing 
investigations.  Some  have  called  for  the  ordinance  to  now  be  rejected,  evidence  obtained  since  the 
ordinance  is  in  force  to  be  annulled  and  for  a  review  of  sentences  ruled  on  the  basis  of  evidence 
obtained under this ordinance.  

Recommendations of the Venice Commission 

On 20 October, the Venice Commission adopted an opinion on the amendments of the Criminal Code 
and  Criminal  Procedure  Code.68  This  opinion  was  requested  by  the  Parliamentary  Assembly  of  the 
Council  of  Europe  following  the  request  on  the  Justice  laws.  The  conclusions  of  the  Venice 
Commission opinion are very critical, pointing to rule of law concerns in leaving crimes unpunished 
and to a lack of quality of the legislation, 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 is concerned 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."  

Civil Code and Code for Civil Procedures 

The January 2017 CVM report included a recommendation that the Minister of Justice, the Superior 
Council of Magistracy (SCM) and the High Court of Cassation and Justice (HCCJ) 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. In December 2016, a new deadline of January 2019 was 
set for the entry into application of those provisions. The November 2017 CVM report noted that steps 
were underway to provide the necessary infrastructure for the changes.  

In June 2018, Parliament adopted amendments to the Code of Civil Procedure annulling three out of 
the four provisions in question. In particular, a major change was made in eliminating the preliminary 
analysis stage in the Council Chamber in the civil procedure.  

The amendments were challenged to the Constitutional Court by the HCCJ. The Constitutional Court 
ruled in July and admitted part of the challenge. The law need to be revised in Parliament accordingly. 
The  effects  of  these  new  amendments,  in  particular  on  the  workload  of  the  HCCJ,  will  need  to  be 
assessed. 

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 

66     On 4 October 2018, the European Commission sent a letter to Romania requesting clarifications with regard 
to  aspects  of  the  amendments  with  regard  to  various  aspects  of  EU  law.  The  request  for  clarification 
includes aspects relating to the transposition of the confiscation Directive (2014/42/EU). The Commission 
is analysing the answer of Romania received on 5 November, also taking into account the decisions of the 
Constitutional Court.  

67        Ruling  on  the  Criminal  Procedure  Code  of  12  October  -    https://www.ccr.ro/noutati/COMUNICAT-DE-
PRES-332 and on the Criminal Code of 25 -  https:/www.ccr.ro/noutati/COMUNICAT-DE-PRES-338. The 
motivations of the decisions are not yet available. 

68     Venice Commission, Opinion   930/2018  

14 

 
 
                                                           
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 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. 

The  January  2017  CVM  report  had  highlighted  the  difficulties  with  certain  legislative  practices 
allowing  for  the  sudden  introduction  of  changes  through  Parliament,  with  a  lack  of  preparation, 
notably  impact  assessment  and  consultation,  and  noted  that  this  made  it  harder  to  demonstrate  the 
sustainability  of  the  legal  framework.  This  recommendation  was  therefore  explicitly  aimed  at 
strengthening internal safeguards against abrupt reversals of the progress made, in order to ensure the 
irreversibility required to satisfactorily fulfil the CVM benchmarks. Amendments and updates will of 
course always need to be possible, but continuity can be expected in terms of general principles, such 
as judicial independence, access to justice, and the sanctioning of crime in accordance with the law. 
Consultation  and  debate  are  ways  to  contribute  to  the  respect  of  these  general  principles  as  the 
foundation for a sustainable legal order. 

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. The report also noted that the operation 
and outcome of this committee will be directly relevant to the fulfilment of the recommendation. 

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 broadcasted, the drafts are usually available and the judicial institutions are 
invited to the debates and can give their opinion.  

However, the process raised a number of concerns. The legislation was looked at in great haste, under 
procedures either imposed by the Chair of the Committee or because an urgency procedure had been 
chosen  formally.  The  examination  in  the  Committee  of  the  amendments  to  the  Justice  laws  and  the 
Criminal Code and Criminal Procedure Code lasted about two months.  This limited the possibility of 
debates on issues of profound societal importance and a high level of controversy, while the objective 
reasons  for  urgency  procedures  in  the  first  place  remain  unclear.  Later,  when  the  debates  were 
finalised in the Special Committee, the draft laws passed through the two chambers of Parliament with 
little  or  no  debate.  The  amendments  have  been  challenged  before  the  Constitutional  Court  by  the 
President of Romania, the opposition parties in Parliament, as well as the High Court of Cassation and 
Justice. However the urgency procedure only left 48 hours for the different parties to file the referral to 
the Constitutional Court.  

While  Members  of  Parliament  have  argued  that  the  legislative  process  is  transparent  and  takes  into 
account  the  opinion  of  the  magistracy,  pointing  that  many  amendments  in  the  laws  (especially  the 
Justice laws) came from the magistracy themselves, it remains the case that the most critical problems 
were  not  debated  and  that  at  successive  stages,  there  has  been  almost  no  real  engagement  with  the 
views  of  judicial  institutions  with  legitimate  roles  under  the  Constitution.  An  examination  of  the 
practical implications of the amendments has also been hampered by the lack of impact assessment.69 
The adoption of Government Emergency Ordinances modifying the freshly promulgated Justice laws 
with even less debate raised similar concerns with regard to the legislative processes. (See above). 

The  risks  of  this  approach  were  demonstrated  when  the  Venice  Commission  eventually  confirmed 
concerns on judicial independence in the justice laws which were already flagged in the initial stages 
of  the  parliamentary  debate,  and  further  when  in  October  2018,  the  Constitutional  Court  issued 
decisions on the amendments to the Criminal Procedure Code and the Criminal Code where it found 

69     GRECO had specifically recommended an impact analysis of potential changes. 

15 

 
 
                                                           
that  many  of  the  challenged  amendments  were  unconstitutional.70  The  Constitutional  Court  rulings 
touch on many of the issues raised by the Venice Commission and by the European Commission, as 
many had constitutional implications.  

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 SCM and Court of Auditors in order 
to ensure proper implementation of the Action Plan. 

Respect  and  implementation  of  court  decisions  is  an  integral  part  of  the  efficiency  of  the  judicial 
system  as  set  out  in  Benchmark  One.71  This  recommendation  concerns  enforcement  of  decisions 
against the State, in which a public institution has to pay an amount of money  or in which a public 
institution has to fulfil an action.  Non-implementation or delayed implementation of court decisions 
by the administration erodes confidence in justice and wastes time and resources in follow-up cases or 
appeals on repetitive decisions.72 

As set out in the January 2017 CVM report, following the condemnation of Romania by the European 
Court of Human Rights in a group of cases on non-enforcement or delayed enforcement, in December 
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.73 This action plan and 
the  additional  measures  required  by  the  Council  of  Europe  Committee  of  Ministers  are  of  direct 
relevance to addressing this recommendation. 

In 2018, Commission services were able to meet the interinstitutional working group responsible for 
this action plan and discuss the progress directly.  Overall work is progressing, although not always as 
quickly as announced in the action plan. In several strands the working group has identified solutions. 
The working group prepared a Memorandum “Measures to ensure the execution of judgments against 
a public debtor, in line with the case law of the European Court of Human Rights (Săcăleanu against 
Romania)” that it submitted in September 2018 to the Government74 for approval. The memorandum 
includes proposals for amendments to the legal framework in order to guarantee timely execution of 
the  domestic  judgments  and  for  establishing  a  mechanism  to  supervise  and  prevent  late  execution, 
with a special fund intervening to guarantee the payment of the debt if the debtor (a given legal entity 
under the responsibility of the State) is unable to pay.  

After input from the Government, the working group will resume its work and finalise the legislative 
proposals to have the laws adopted by the Government.  It will also need to examine whether other 
legislative changes than those already identified will be necessary to fulfil all the requirements of the 
action plan, in particular with regard to the implementation of judgments imposing on the State or on 
legal entities under the responsibility of the State an obligation to perform a specific act. 

Complementing  the  activity  of  the  working  group,  the  Ministry  of  Justice  with  the  support  of  the 
Superior Council of Magistracy has progressed on the definition of an IT registry of court decisions in 

70        Decision  of  12  October  on  the  Criminal  procedure  Code    https://www.ccr.ro/noutati/COMUNICAT-DE-
PRES-332 and decision of 25 October on the Criminal Code https://www.ccr.ro/noutati/COMUNICAT-DE-
PRES-338. The motivations of the decisions have not yet been published.  

71   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  

72   An  example  of  repetitive  case  in  2016  was  VAT  or  environmental  tax  cases  whether  the  national  and 
European level (ECJ) had already given clear rulings, but where the administration continued to bring cases 
forward. 

73     COM(2017) 44 p.6. The Action plan of structural measures in relation to the Săcăleanu group of cases can 

be found at 
https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=09000016806dda63 
74    The memorandum has been transmitted to the General Secretariat of the Government, for approval by the 

Prime Minister.  

16 

 
 
                                                           
which  the  State  is  a  debtor  or  a  creditor.75  The  registry  will  make  available  statistics  on  effective 
enforcement,  and  will  allow  responsible  entities  to  monitor  the  execution  of  judgements,  to  prevent 
late enforcement by making public debtors proactive and if necessary provide solutions for systemic 
problems.  The  creation  of  the  IT  registry  has  now  been  taken  up  as  part  of  the  mechanism  for 
prevention.  A  pilot  project  for  this  registry  will  be  implemented  in  the  Arges  Tribunal  in  February 
2019, with a fist version to be developed in December 2018. 

The  registry  takes  data  from  the  court  information  system  (ECRIS).  The  more  systemic  integration 
with ECRIS will be achieved in the project to modernise the ECRIS system to be finalised by 2020.  

Other actions have been taken already to facilitate the execution of decisions. The Ministry of Finance 
revised  the  operational  procedures  for  the  execution  of  enforceable  titles  to  optimise  the  flows  of 
documents and reduce the time between submission of the application from the creditor to the actual 
settlement  of  the  claim.  The  amendments  of  the  Justice  laws  include  a  proposal  from  the  Superior 
Council of Magistracy giving general mandatory effect to the decisions issued by the High Court of 
Cassation and Justice in the matter of appeals in the interest of the law and of preliminary rulings. This 
would address problems with repetitive court referrals by the administration on interpretations of the 
law where the issue has already been solved by the HCCJ.  

Recommendation  6:  The  Strategic  Judicial  Management,  i.e.  the  Minister  of  Justice,  the  SCM,  the 
HCCJ 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. 

The November 2017 report noted that the comprehensive Action Plan adopted in 201676 setting out the 
structural  reform  steps  to be  taken  until  2020  for  the  development  of  the judicial  system  was  under 
way, that it should bring major benefits to the users of the justice system, also improving public trust. 

In March 2018, the Strategic Judicial Management published the first report on the implementation of 
the Action Plan.77 The report covers the implementation of the six directions of activity, with their 19 
Strategic objectives and 153 measures, with a total of 258 indicators of performance. Overall, by 31 
January  2018,  26%  of  indicators  had  been  achieved,  60%  were  ongoing  (with  43%  within  the 
deadline)  and  14%  unachieved.  The  reasons  for  the  delays  were  identified78  and  practical  solutions 
suggested. The report notes that applications for EU funds (POCA) have started only end of 2016. 

The  Action  Plan  is  followed  up  by  a  Technical  Working  Group  with  representatives  from  all 
institutions  within  the  Strategic  Judicial  Management.  They  meet  regularly,  re-planning  overdue 
measures; detailing the ample measures into activities, with deadlines and responsible institutions; and 
determining intermediary targets for indicators with deadlines in 2019, 2020. The Working Group was 
also tasked to propose revisions of the Action Plan, such as rescheduling the terms for fulfilling certain 
measures,  amending  or  eliminating  measures.79  A  Monitoring  Commission  follows  the  work  of  the 
Working Group and has defined new ways of monitoring and reporting on the implementation of the 
Action Plan, such as monitoring by actions and objectives and not per institution. It also approved the 

75    The solutions identified have been transmitted for approval to the SCM on 20 September by the Strategic 

Management Council. 

76       Action  Plan  for  implementing  the  Strategy  for  the  Development  of  the  Judiciary  2015-2020  approved  by 

Government Decision no. 282/2016 

77     http://www.just.ro/wp-content/uploads/2016/12/Raport-monitorizare.pdf  
78    Some measures no longer correspond to recent developments and needed to be re-planned or intermediate 

deadlines are to be set.  

79     Examples of measures being revised are:  allocating the necessary positions for implementing the legislation 
on  the  bankruptcy  of  natural  persons;  reducing  the  workload  of  courts  and  prosecutor`s  offices  by 
promoting  mediation;  monitoring  and  annual  evaluation  of  progress  under  the  National  Anti-Corruption 
Strategy 2016-2020 on the integrity of the judiciary; developing and improving tools for solving identified 
risks  and  vulnerabilities  and  to  ensure  the  performance  of  the  Strategy  within  the  judiciary;  promoting 
ethics and conduct standards for all legal professions and analysing the mechanisms to identify and tackle 
the violation of ethical standards. 

17 

 
 
                                                           
proposed revisions of the Action Plan drafted by the Technical Working Group and passed these on to 
the Strategic Judicial Management for its meeting in September 2018. 
Between November 2017 and September 2018, the Strategic Management Council met regularly.80 It 
followed up on the monitoring of the Action Plan. In March 2018, it also assigned new tasks to the 
Technical  Working  Group:  drafting  a  memorandum  to  set  up  a  permanent  mechanism  of  dialogue 
between  the  representatives  of  the  three  state  powers;  drawing  up  proposals  for  improving  the 
management  of  the  judicial  system  and  identifying  innovative  solutions  for  its  development;  and 
drafting guidelines for updating the IT system for cases follow-up within the justice system (ECRIS) 
in accordance with the entry into force of the General Data Protection Regulation. This was followed 
up by the meeting of the Strategic Judicial Management in September. 

The  implementation  of  the  action  plan  is  financed  also  through  EU  structural  funds.    The  Superior 
Council of the 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 
European Social Fund  Administrative Capacity Operational Programme. The Public Ministry is also 
implementing several projects funded under the same strategic objective.81  

The  Strategic  Judicial  Management  was  set  up  as  part  of  the  Strategy  for  the  Development  of  the 
Judiciary 2015-2020 to create a forum of discussion and strategic decision making for the management 
of the judicial system. The competences and responsibilities for the management of the judicial system 
are shared between the Superior Council of the Magistracy, the High Court of Cassation and Justice, 
the Prosecutor General and the Ministry of Justice. The creation of the Strategic Judicial Management 
was a recommendation from the functional review of the judicial system finalised by the World Bank 
in 2013, following the finding that these institutions tended to make decisions in isolation. 

Recommendation 7:  The new SCM 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. 

Previous CVM reports have underlined the importance for the Superior Council of Magistracy (SCM) 
to maintain the momentum of reform, to articulate clear collective positions and philosophy and take 
measures for increasing its transparency and accountability. The November 2017 report noted that the 
Superior  Council  of  the  Magistracy  (SCM)  had  set  out  its  priorities  for  its  mandate  (2017–2022), 
providing  a  first  basis  to  promote  the  accountability  of  the  institution.  The  defence  of  the 
independence of the justice system being one of the priority areas. The report had therefore concluded 
positive steps in relation to the activities of the SCM in line with the recommendation, and noted 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.  The  Council  should  also  promote  further  strengthening  of  cooperation 
between  judicial  institutions  on  key  outstanding  issues,  including  the  functioning  of  the  Judicial 
Inspection." 

The SCM is the defender of the independence of the justice. This role includes giving a point of view 
on  draft  laws  which  could  affect  the  independence  of  justice.  In  November  2017,  the  CVM  report 
noted  that  the  SCM  had  been  able  to  speak  in  one  voice  in  September  2017  rejecting  proposed 
amendments of the Justice Laws, after having consulted all courts and prosecution offices. 

After  November  2017,  as  discussion  evolved  in  the  Romanian  Parliament  on  the  Justice  laws,  it 
became  increasingly  difficult  for  the  SCM  to  speak  in  one  voice  and  articulate,  in  the  name  of  the 
courts  and  prosecution  offices,  a  reasoned  point  of  view  on  changes  which  could  affect  judicial 
independence as well as the quality and efficiency of the judicial system. In the debates leading to the 

80     January, March, June and September 2018.   
81     Four projects amounting to 85 million Lei.   

18 

 
 
 
                                                           
adoption  of  the  amended  Justice  laws  in  December  2017,  magistrate  associations  noted  that  it  was 
unclear  whether  SCM  members  present  at  the  debates  were  defending  an  agreed  position  of  the 
Council  or  only  individual  views.82  Later  on, although  also  requested  by  GRECO,  the  SCM  did  not 
take the opportunity to make an impact assessment of the amendments of the laws, notably changes 
with  a  major  managerial  impact  such  as  the  changes  regarding  early  retirement  and  entry  into 
profession.  

Following the preliminary opinion of the Venice Commission in July, pointing to serious problems in 
the  amended  Justice  laws  regarding  independence,  efficiency  and  quality  of  the  justice  system,  the 
SCM appeared again divided on whether or not the Venice Commission recommendations should be 
followed  up.    Some  members  of  the  SCM  expressed  support  for  the  changes  proposed  by  the 
Parliament, pointing to the progress and increased independence provided by the amended Justice laws 
and  dismissing  negative  impacts  of  the  amended  laws,  also  questioning  the  conclusions  and  the 
recommendations  of  the  Venice  Commission's  opinion.  In  early  October,  upon  request  of  the 
Parliament, the SCM adopted a decision on changes it would consider necessary in the Justice laws.83 
This process seems to have in the end been short-circuited by Emergency Ordinances adopted by the 
Government (see recommendation 1).  
On  the  amendments  of  the  Criminal  Codes,  the  SCM  was  requested  to  give  a  point  of  view.84  The 
SCM consulted all courts and prosecution offices and on this basis compiled a point of view which it 
shared with the Parliamentary Committee. Members of the SCM attended the debates in Parliament, 
putting  forward  amendments  and  comments,  drawing  on  this  point  of  view.  However  there  was  no 
public  position  of  the  SCM  on  the  amendments,  neither  an  analysis  of  the  impacts  on  the  judicial 
system. After the adoption of the amendments to the Criminal Code and Code of Criminal Procedures, 
the SCM had no official opinion on the amendments. SCM members expressed the view that the SCM 
could no longer express itself at this stage of the procedure.  

In the January 2017 report, the Commission had also recommended that the SCM should continue to 
report  publicly  on  actions  it  has  taken  in  defending  the  independence  of  justice  and  protection  of 
reputation,  independence  and  impartiality  of  magistrates.  In  November  2017,  the  report  highlighted 
that this would be an important illustration of the priority given to this role. Following the November 
2017 report, the SCM proposed a number of measures. However, in practice the SCM does not appear 
to have pursued the many cases of criticism of judicial institutions or individual magistrates, except for 
a few particularly flagrant cases.85 Since November 2017, the SCM has taken four decisions to defend 
the  independence  of  the  judicial  system  and  four  decisions  to  defend  the  professional  reputation, 
independence and impartiality of magistrates.86 The January 2017 report had noted that the pro-active 
defence of the independence and impartiality of judges by the Superior Council of Magistracy was an 
important element in fulfilling Benchmark One.  

Cooperation  between  the  sections  (judges  and  prosecutors)  is  also  important,  especially  in  view  of 
stronger  separation  of  competences  under  the  amended  law  317/2004  on  the  Superior  Council  of 
Magistracy and important pressure on the magistracy.   

Judicial Inspection 

82     On 24 November 2017, the SCM reacted to criticism in relation to the presence and statements of the SCM's 
civil society member in the Special Committee in Parliament and making clear that this person was not the 
person responsible for representing the SCM.  

83     https://www.csm1909.ro/ViewFile.ashx?guid=44b8138e-a33d-42e0-814b39458cc3299b|InfoCSM  
84    The SCM members informed Commission services that a "point of view" is not the same as an opinion and 

does not require a decision by the SCM plenum.  

85    For example following declarations of the Prime Minister, the President of the Senate and President of the 
Chamber of Deputies at a rally "against the abuses of the justice system" on 9 June 2018. SCM Section for 
Judges' decision of 22 June 2018 upon referral of the judges association - Forum of Romanian Judges. 
86     From a total of 34 decisions (6 requests to defend the independence of the judicial system were rejected and 
20  requests  to  defend  the  professional  reputation,  independence  and  impartiality  of  magistrates  were 
rejected). 

19 

 
 
                                                           
Successive  CVM  reports  until  January  2017  had  noted  positively  the  progress  in  independence  and 
professionalism  of  the  Judicial  Inspection.  Its  professional  and  independent  checks  had  helped  to 
improve individual and collective accountability within the Judicial System, and the Commission had 
noted  that  the  Judicial  Inspection  was  a  respected  body  within  the  judicial  system.  The  Judicial 
Inspection  was  perceived  as  helping  to  improve  the  public  service  and  public  trust  of  the  judicial 
system. 

In 2017, there were signs of a shift in the positioning of the Judicial Inspection within the judiciary 
and  tense  relations  with  the  SCM.87  In  the  November  2017  report,  the  Commission  had  therefore 
emphasised  that  the  SCM  should  promote  further  strengthening  of  cooperation  between  judicial 
institutions on key outstanding issues, including the functioning of the Judicial Inspection.  

Since then, the Judicial Inspection has been involved in a number of controversial steps in terms of a 
series of disciplinary investigations started against all the heads of the judicial institutions88 (see also 
recommendation  10).89  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 303/2014.90 

The Judicial Inspection also conducted management controls, at the request of the Ministry of Justice, 
and  thematic  controls  at  the  office  of  the  General  Prosecutor  and  the  DNA.  In  at  least  two  cases 
potentially misleading information reached the public domain before the end of the control91 (see also 
recommendation 10) and was used in public debate. 

The  SCM  did  not  launch  a  competition  to  appoint  a  new  management  of  the  Judicial  Inspection, 
although  the  mandate  of  the  management  team  expired  at  the  end  of  August  2018.  This  led  the 
Government  to  address  the  situation  by  adopting  an  Emergency  Ordinance  to  nominate  the  current 
team ad interim.92 The argument put forward for this was that the law regulating the competition has 
been  challenged in court (by  the Judicial  Inspection in  2016) and therefore there  is  a legal  vacuum. 
The SCM did not manage to take steps to ensure that an appropriate solution could be found in order 
for the competition to be organised in time. The fact that the Minister of Justice decided to intervene, 
prolonging the mandates of the incumbent, could be seen to cut across the competences of the SCM.  

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 

The  track  record  of  the  National  Integrity  Agency  (ANI)  remained  steady.  In  the  year  September 
2017-  August  2018,  ANI  found  157  cases  of  incompatibility,  66  cases  of  administrative  conflict  of 
interests  and  11  cases  of  unjustified  wealth.    During  the  same  period,  256  cases  have  become 
definitive,  either through  final  Court decisions that  confirmed  ANI’s  report,  or  through  the fact that 
there was no legal challenge to the ANI evaluation report.93 

87        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.  

88      For  example  disciplinary  proceedings  (verifications,  investigations...)  have  been  initiated  against  the 
Prosecutor  General,  against  the  President  of  the  High  Court  of  Cassation  and  Justice,  against  the  former 
Chief  Prosecutor  of  the  National  Anti-corruption  Directorate,  against  the  Deputy  Chief  Prosecutor  of  the 
National  Anti-Corruption  Directorate,  against  a  Head  and  Deputy  Head  of  Section  in  National  Anti-
Corruption Directorate.  

89     Note that the Judicial Inspection challenged the SCM decision 13044/2.08.2018 to reject the report from the 

Judicial Inspection that the Prosecutor General was in breach of the deontological code.  

90     Venice Commission opinion 924/2018, p 22-24 
91     http://old.csm1909.ro/csm/linkuri/29_11_2017__90051_ro.pdf  The prosecution section discussed the issues 
of  leaks  in  the  management  control  of  the  DNA  in  November  2017;    Press  release  from  the  Judicial 
in  August  2018 
Inspection 
http://www.inspectiajudiciara.ro/Download.aspx?guid=1a0f390e-6bc2-4b92-b6ea-03aa770aa206|InfoCSM  

thematic  control 

to  an  ongoing 

the  DNA 

relation 

in 

in 

92     Government Emergency Ordinance 77/2018 of 5 September 2018. 
93     167 cases of incompatibility, 86 cases of administrative conflict of interests, 3 cases of unjustified wealth. 

20 

 
 
                                                           
 
Previous  CVM  reports  have  noted  the  challenges  to  the  legal  framework  for  integrity.94  Two 
legislative proposals were adopted by the Parliament on 10 July 2018, in spite of a negative opinion 
from  ANI.  The  first  one  aimed  at  introducing  a  prescription  deadline  of  3  years  for  the  deeds  that 
determine the existence of the state of conflict of interests or incompatibility.95 The draft law has been 
challenged  at  the  Constitutional  Court.96  The  second  proposal  amends  the  sanctioning  regime 
regarding conflicts of interests for local elected officials.97 A challenge has also been made before the 
Constitutional  Court.98  Further  proposals  for  amendments  are  pending  in  Parliament.  CVM  reports 
have  also  previously  regretted that frequent changes to  the  law  have  made it  more  difficult to bring 
clarity and sustainability to the integrity framework through a single codification.99 

ANI  continued  to  develop  its  preventive  work,  including  issuing  guidelines  and  clarifications  on 
practical implementation of the law and the case law, as well as organising training and  outreach to 
public  authorities.  ANI  is  also  closely  involved  in  some  activities  of  the  National  Anti-Corruption 
Strategy.  As  mentioned  in  the  November  2017  report,  the  budget  of  ANI  was  sharply  reduced  in 
2017.100 This situation has continued and for the fourth quarter of 2018, ANI risks shortfalls in paying 
salaries and contractors.101  

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. 

The PREVENT system is designed to prevent conflicts of interests in public procurement procedures 
by  setting  up  an  ex-ante  verification  mechanism  to  detect  situations  that  may  generate  conflicts  of 
interests  in  procurement  procedures  launched  through  the  electronic  procurement  system.  It  is  also 
designed  to  allow  the  contracting  authorities  to  remedy  these  situations  prior  to  the  award  of  the 
contract.  It  was  the  result  of  a  close  collaboration  between  the  Government,  the  National  Integrity 
Agency (ANI), the agency for public procurement (ANAP) and the Digital Agenda Agency. It became 
operational in June 2017.102 

The PREVENT system involves the analysis of the data and information filled in on an integrity form 
by  staff  of  the  contracting  authority,  by  cross-checking  this  information  with  relevant  databases 
(National Trade Register Office, Directorate for Persons Record and Databases Management).  It can 
automatically track connections that may exist between officials in charge of public procurement (such 
as  evaluation  committee  members  and  persons  with  decision-making  powers  in  the  contracting 
authority)  and  applicants  in  public  procurement  procedures  (tenderers  or  their  representatives).  The 
results  of  this  cross-checking  is  verified  by  ANI  inspectors,  who  issue  an  integrity  warning  to  the 
contracting authority if the system flags a possible conflict of interest. The contracting authority must 
then take all necessary measures to remove the possible conflict of interests and inform ANI, in order 
to lift the warning and proceed with the contract award. 

The  PREVENT  system  is  now  fully  operational.  From  the  start  of  operations  in  June  2017  until  1 
September  2018,  PREVENT  has  analysed  16,210  public  procurement  procedures  with  a  cumulative 

94   CVM Report January 2017 – Technical Report SWD(2017)25 p 25, 28. 
95     Law modifying Law 176/2010 regarding integrity in public functions. 
96     CCR decision of 6 November. It seems that the amendments are unconstitutional.  

https://www.ccr.ro/noutati/COMUNICAT-DE-PRES-339. The motivation has not yet been published. 

97     Law modifying Law 393/2004 on the Statute of locally elected officials. 
98      CCR  decision  of  16  October;  It  seems  that  the  decision  partially  admits  the  referral  and  annulled  the 
provisions restricting the  situations for conflict of interests  https://www.ccr.ro/noutati/COMUNICAT-DE-
PRES-333. The motivation has not yet been published.  

99     CVM report 2017 COM(2017) 44. 
100     From about 33 million Lei in 2016 to 22,5 million Lei in 2017.  
101   In 2018, the budget has been further reduced to 18 million Lei (a supplement of 1,5 million Lei requested by 

ANI was not approved). 

102    https://www.integritate.eu/prevent.aspx  

21 

 
 
                                                           
value  of  over  EUR  15  billion.  Eight  percent  of the  procedures  analysed concerned  EU  funds.   As a 
result,  ANI  issued  57  integrity  warnings,  some  of  them  concerning  procurements  with  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 nine cases, the potential conflict of interests was not addressed. ANI has started an ex-
officio investigation for conflict of interests in two of these cases. 

In  addition,  the  National  Integrity  Agency  has  also  notified  the  National  Agency  for  Public 
Procurement  (ANAP)  of  38  cases  of  possible  irregularities103  in  the  public  procurement  procedures 
regarding  possible  conflicts  of  interest  between  members  of  the  contracting  authority  and  bidders 
within the tender. These concern cases of potential conflict of interest as defined by the transposed EU 
public procurement directives but do not fall under ANI competence and are therefore to be followed 
up by ANAP.104 In addition to the warnings, the PREVENT system has also raised awareness among 
contracting  authorities  who  regularly  contact  both  the  National  Integrity  Agency  and  the  National 
Agency for Public Procurement for advice on conflict of interest and integrity rules when preparing 
procurement procedures. Overall it seems that the preventive approach has had some positive effects, 
and the willingness of the large majority of contracting authorities to eliminate potential conflicts of 
interest before the contracts are signed demonstrates the value of the PREVENT system.  

Through  an  Emergency  Ordinance  (98/2017  of  14  December  2017),  ANAP  has  been  granted  the 
possibility to fine contracting authorities which do not respond to alerts from the PREVENT system. 
However,  it  is  not  clear  what  is  the  added  value  of  adding  provisions  on  fining  to  a  system  with  a 
preventive  purpose.  The  risk  is  that  a  shift  to  using  PREVENT  as  a  trigger  for  sanctions  will 
undermine the success it has had so far in terms of awareness raising and advice.105  

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  January  2017  CVM  report  noted  that  there  has  been  substantial  progress  in  the  follow-up  of 
reports from the National Integrity Agency (ANI), but that court proceedings remained very long and 
that  there  remained  exceptions  to  the  applications  of  sanctions.  In  particular,  CVM  reports  had 
previously highlighted the delay and the inconsistency in the application of sanctions for Members of 
Parliament found incompatible or in conflict of interest following a final court decision or a final ANI 
report. The Commission had recommended that the Parliament should be transparent in its decision-
making with regard to the follow-up to final and irrevocable integrity decisions against its members. 

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 to which the member belongs has to take note of the termination 
of the mandate of the Deputy or the Senator, and to put the question to the vote of the plenary session 

103    Since the start of the PREVENT system. 
104   ANAP send standard replies to ANI on  whether the  notifications have been taken into account.  For 2018 
ANAP was not present in the meetings during the last CVM mission to discuss the follow-up to these cases. 
105   ANAP informed the Minister of Justice on 13 September 2018 of the opportunity to modify the  Emergency 
Ordinance (98/2017 of 14 December 2017) in the sense of what ANI have requested, A final solution  has 
not yet been  decided. 

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. 

22 

 
 
                                                           
of  the  relevant  Chamber.107  However  there  is  no  deadline  for  this  step  to  take  place.    In  cases  of 
administrative conflict of interests, Article 19 and 51 of the Statute regulates the applicable sanction, 
the  procedure  and  the  deadlines,  if  the  Member  of  Parliament  appeals  the  sanction.  The  applicable 
sanction is a 10 % allowance reduction for up to three months.108 As reported in the November 2017 
CVM  report,  debates  within  the  Legal  Committee  and  the  Plenary  Session  of  the  Parliament  are 
transmitted live and the video recording is also available after the session.  

Since October 2016, five final and irrevocable court decisions have been issued against Members of 
Parliament (two cases  of incompatibility  and three  cases  of administrative  conflict  of interests).   As 
already mentioned in the CVM report of November 2017, three other cases concern the election and 
validation  in  Parliament  (after  the  elections  of  December  2016)  of  persons  under  an  interdiction  to 
occupy  a  public  office  for  a  period  of  three  years  following  a  final  court  decision  against  them  for 
incompatibility or administrative conflict of interests. ANI signalled these cases to the Parliament in 
February  2017.109  In  February  2018,  the  Parliament  sent  a  letter  to  ANI  stating  that  no  disciplinary 
sanction would be applied for four of the cases above.110 For the other cases the Parliament has not yet 
reacted. 

In its letters, the Parliament states that the "integrity incident ascertained by ANI was not committed in 
the current mandate, but in a previous mandate/position. Moreover, the respective deputy or senator 
did not commit any disciplinary offence in the current mandate, thus no disciplinary sanction should 
be  applied”.  It  should  be  noted  that  the  courts  have  not  applied  this  interpretation,  and  that  other 
public  institutions  have  applied  the  sanctions  following  final  court  decisions  whether  or  not  the 
individuals  concerned  have  changed  mandate  or  function.  A  large  majority  of  the  265  cases  of 
incompatibility and conflict of interests of local elected officials in 2017-2018 where ANI reports have 
become definitive related to integrity incidents occurred in previous mandates or positions, and in only 
two cases the disciplinary sanction was not applied. This is therefore a new element of uncertainty in 
an important area for the dissuasiveness of sanctions in integrity policy. 

Benchmark  3:  Building  on  progress  already  made,  continue  to  conduct  professional, 
non- partisan investigations into allegations of high- level corruption 

An  important  conclusion  of  the  January  2017  report  was  the  strong  track  record  of  the  institutions 
involved  in  investigating,  prosecuting  and  ruling  on  high-level  corruption.111    The  report  explicitly 
noted that weakening or shrinking the scope of corruption as an offence, or major challenges to the 
independence  and  effectiveness  of  the  National  Anti-Corruption  Directorate  (DNA),  would  entail  a 
reassessment of the progress made.  

During  2018 the judicial  institutions involved  in fighting  high-level  corruption have  maintained this 
record.  Despite  increasingly  difficult  circumstances,  the  results  of  the  judicial  institutions  are 
comparable to previous years. From September 2017 to August 2018, the DNA sent 854 defendants to 
trial in 299 cases. 266 final conviction decisions were issued against 659 defendants. Seizing measures 
were  ordered  for  EUR  447  million  and  final  confiscations  amount  to  about  EUR  67,4  million,  with 
final decisions on compensation to civil parties of EUR 109 million, including EUR 81 million (74%) 
as  compensation  awarded  to  public  authorities  and  institutions  and  to  companies  with  state  capital. 
From  January  1  to  31  August  2018,  the  High  Court  of  Cassation  and  Justice  solved  13  high  level 

107   Act No 96 of 21 April 2006 on the Statute of Deputies and Senators – Article 7 (4). 
108   Act No 96 of 21 April 2006 on the Statute of Deputies and Senators – Article 19 and Article 51. 
109   COM(2017) 751, p9 
110   Referring to decisions of  February 2018 of the Permanent bureau of the Chambers of Deputies. 

http://www.cdep.ro/bp/docs/F1147986081/Ibram.pdf; 
http://www.cdep.ro/bp/docs/F1858352224/informare%20interese.pdf;   

        http://www.cdep.ro/bp/docs/F-1815178120/Cjur%20Cataniciu.pdf; 
http://www.cdep.ro/bp/docs/F2118784823/Cjur%20Roman.pdf; 
http://www.cdep.ro/bp/docs/F153640837/Cjur%20Suciu.pdf 

111    CVM  reports  have  also  noted  that  the  DNA  has  investigated  and  sent  to  trial  politicians  of  all  political 
parties, including politicians still in office, and high level officials from public institutions throughout the 
country. 

23 

 
 
                                                           
corruption  cases  at  first  instance  and  settled  10  high-level  corruption  cases  by  final  decision.112  It 
should also be noted that DNA's responsibilities for fraud and corruption involving EU funds are of 
specific interest and the European Anti-Fraud Office has reported the professional collaboration and 
successful follow-up on files by the DNA. 

At the same time, there are a number of important concerns. The issue of the appointment procedure 
for senior prosecutors and the lack of checks and balances discussed under recommendation 1 above 
have particular significance for the DNA.  

The first area of concern relates to the amended Justice laws. As well as the general problematic issues 
described  earlier,  certain  provisions  create  a  specific  concern  with  regard  to  the  fight  against 
corruption.    The amended law 304/2004 on the judicial organisation creates a new department whose 
exclusive  responsibility  would  be  investigating  crimes  committed  by  magistrates.  The  set-up  of  this 
new section has sparked concern that a new standalone structure would be more vulnerable in terms of 
independence than the DNA's current responsibilities in this area, as it could be used as an additional 
instrument to intimidate and put pressure on magistrates.113 As a department dealing with all crimes by 
magistrates,  it  will  also  lack  the  horizontal  expertise  of  the  DNA  on  corruption  crimes,  and  the 
investigation of persons in cases also involving magistrates may further fall out of the jurisdiction of 
the DNA.114 Advocates of the change have invoked shortcomings in the activity of the DNA and cases 
where defendants have been acquitted in court. But there has been no analysis or impact assessment 
published which justifies the claims of systematic shortcomings and the preference for a new structure. 
In  their  recommendations,  both  GRECO  and  the  Venice  Commission  clearly  point  to  keeping  this 
competence  within  the  specialised  anti-corruption  prosecution  service  (DNA),  suggesting  that  any 
shortcomings could be addressed not by creating a separate prosecutor's office structure but instead by 
ensuring the respect of effective procedural safeguards.115 116   

A second area of concern is that the DNA appears to have 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 dismissal of the sitting Chief Prosecutor and the proposed appointment of 
a new Chief Prosecutor for the DNA took no account of the clear and strong opinion of the Superior 
Council of the Magistracy (SCM) raised major doubts about the process.117 118  The Minister of Justice 
has  also  launched  procedures  for  appointing  new  Deputies  and  Heads  of  Sector  following  the  same 
procedure.119  An  added  concern  has  been  the  approach  of  the  Judicial  Inspection,  which  launched 
several disciplinary proceedings against the former Chief Prosecutor of the DNA, as well as the use 

112    In the period January to August 2017, the DNA sent 573 defendants to trial in 209 cases (compared to 238 
in  2016).  209  final  conviction  decisions  (compared  to  214  in  2016)  were  issued  against  439  defendants. 
Seizing  measures  were  ordered  for  59  million  EUR  and  final  confiscations  amount  to  about  7,4  million 
EUR. In 2017, the HCCJ solved 13 high-level corruption cases at first instance and settled two high-level 
corruption cases by final decision. 

113    Venice Commission, Opinion 924/2018, p17 
114      According  to  the  law,  conflicts  of  jurisdiction  for  corruption  cases  with  several  defendants  including  a 

magistrate will be decided by the Prosecutor General. 

115      GRECO,  Greco-AdHocRep(2018)2,  p19: "GRECO  recommends  that  that  the  creation  of  the new  special 

prosecutor’s section for the investigation of offences in the judiciary be abandoned." 

116    Venice  Commission,  Opinion  924/2018,  p30:  "The  Venice  Commission  recommends  to  reconsider  the 
proposed  establishment  of  a  separate  prosecutor’s  office  structure  for  the  investigation  of  offences 
committed  by  judges  and  prosecutors;  the  recourse  to  specialized  prosecutors,  coupled  with  effective 
procedural safeguards appears as a suitable alternative in this respect." 

117    See recommendation 1, footnote 56. 
118    Public  statements  of  the  candidate  after  her  selection  by  the  Minister  of  Justice  have  also  sparked 

controversy,  including commenting on the use of files as blackmail against magistrates: 

        https://www.mediafax.ro/social/exclusiv-adina-florea-la-sefia-dna-nu-exclud-ca-dosarele-care-vizeaza-

magistrati-sa-reprezinte-o-forma-de-santaj-ce-spune-despre-actiunea-de-decapare-institutionala-17519006. 

119   http://www.just.ro/anunt-referitor-la-selectia-procurorilor-in-vederea-efectuarii-propunerilor-de-numire-

pentru-8-functii-vacante-de-conducere-din-cadrul-parchetului-de-pe-langa-inalta-curte-de-casatie-si-justitie-
dire/  

24 

 
 
                                                           
that has been made of these disciplinary reports.120 Non-final reports and reports rejected by the SCM 
were used to justify the dismissal.121 Disciplinary proceedings were also launched against the deputy 
Chief Prosecutor and other magistrates in the DNA. In addition, the Minister of Justice triggered two 
management controls by the Judicial Inspection in 2017 and 2018 within the DNA.  122 The methods 
used  by  the  Judicial  Inspection  also  gave  rise  to  controversy  when  conclusions  reached  the  media 
before finalisation. In August 2018 the Judicial Inspection started a new ex-officio control on all files 
relating  to  corruption  within  the  magistracy.  The  release  of  selective  data  on  the  number  of  cases 
involving  magistrates  was  also  seen  as  engaging  in  a  political  debate  in  a  way  damaging  to  the 
impartiality of the Judicial Inspection.123 124   

Third, this pressure has extended to the High Court of Cassation and Justice (HCCJ), in particular the 
criminal  sections,  which  deal  with  many  high-level  corruption  cases.  Since  November  2017,  the 
Judicial Inspection has been seized with several disciplinary referrals against the President of the High 
Court.125  In  autumn  2018,  the  Judicial  Inspection  launched  a  second  inquiry  in  relation  to  the 
implementation of new provisions of the amended justice law 304/2004.126 In addition, on 2 October, 

120   Two were rejected by the SCM. The SCM rejected on 25 July 2018 the Judicial Inspection action regarding 
non  presentation  of  former  DNA  Chief  Prosecutor  in  Parliament  hearings;  on  13  June,  and  rejected  the 
disciplinary  action  for  allegedly  having  designated  an  incompatible  member  as  a  control  team  member. 
Others still need to be examined by the SCM.  

121     In  the  evaluation  made  by  Minister  of  Justice  on  22  February  2018  which  was  the  basis  of  the  dismissal 

procedures http://www.just.ro/comunicat-de-presa-raportul-privind-activitatea-manageriala-la-dna/   

122    According  to  the  law,  the  Minister  of  Justice  can  launch  the  revocation  procedure  for  the  DNA  chief 
prosecutor based on a management control. The report of the Judicial Inspection was examined by the SCM 
in  November  2017  but  did  not  conclude  on  major  deficiencies  in  the  DNA  management.  A  number  of 
recommendations had to be implemented within 6 months. This period had not elapsed when the Minister 
of Justice launched the request for dismissal.  

123    A  press  release  of  24  August  from  the  Judicial  Inspection  published  the  number  of  cases  concerning 
magistrates  received from the DNA during the inspection "Between January 1, 2014 and July 30, 2018, the 
National Anticorruption Directorate settled 1965 cases concerning 3420 magistrates (2193 judges and 1227 
prosecutors)". 

        http://www.inspectiajudiciara.ro/Download.aspx?guid=1a0f390e-6bc2-4b92-b6ea-03aa770aa206|InfoCSM, 
124    On 5 October, the DNA published a statement explaining the numbers cited by the Judicial Inspection. The 
statement explains that (1) 2396 cases were registered between January 1, 2014 and July 30, 2018 the large 
majority of cases is caused by the high number of complaints, which the DNA is obliged to follow-up. In 
total 1978 cases were settled); (2) Only a small fraction of complaints and ex-officio investigations (183) 
concern criminal judges (3) Less than 3% of these cases were referred to court (56 cases with referrals for 
73 magistrates (42 judges and 31 prosecutors)). 97% of the cases were either closed or declined; (4) In the 
same  period,  65  magistrates  were  convicted,  10  magistrates  acquitted  and  trials  are  still  ongoing  for  25 
magistrates.  

        http://www.pna.ro/comunicat.xhtml?id=9110; http://business-review.eu/news/dna-transmitted-that-only-

2396-magistrated-were-heard-in-the-last-four-and-a-half-year-186762 

125      On  9  November  2017,  made  by  the  President  of  the  Senate  in  relation  to  her  statements  concerning  the 
amendments of the Justice laws; on 22 July 2018 made by Lumea Justitiei in relation to her statements on 
the revocation procedure of the DNA Chief Prosecutor.  

126      Press  release  of  17  September  2018.  The  Judicial  Inspection  was  notified  on  23  August  2018  regarding 
possible  disciplinary  misconducts  regarding  the  application  by  the  management  of  the  High  Court  of 
Cassation and Justice of Law no.207 / 2018 amending and supplementing the Law no.304 / 2004 on judicial 
organization.    This  concerned  the  constitution  and  composition  of  appeal  panels.    In  its  press  release  the 
Judicial Inspection felt the need to justify its action: "The inspections carried out by the Judicial Inspection 
are not conditioned, according to the Law no. 317/2004, by the level of the court and the position held by 
the  magistrate  concerned.  Also,  verifications  are  not  conditional  on  the  notoriety  of  the  causes  of  the 
judgment. In all cases, the inspections carried out by the Judicial Inspection aim at observing and correctly 
enforcing the law. The public exposure of judges and prosecutors with leading positions determines among 
other  things  an  appreciable  number  of  disciplinary  complaints  about  their  activity  and  conduct.  As  such, 
performing inspections by the Judicial Inspectorate on the professional activity of the President of the High 
Court of Cassation and Justice cannot be a novel fact. Associating the work of the Judicial Inspection with 
events  with  potential  significance  in  political  life  is  only  another  attempt  to  reduce  the  institution's 
vulnerability and weaken its ability to respond to disciplinary slippages." 

25 

 
 
                                                           
the Government referred the High Court to the Constitutional Court, invoking a constitutional conflict 
(see above).127      

Fourth, as already mentioned in the section on recommendation 3, certain amendments to the Criminal 
Code and Criminal Procedure Code and the special law on corruption as adopted by the Parliament in 
June  and  July  2018  would  impact  the  prosecution  and  sanction  of  corruption  crimes.  Some  of  the 
amendments  would  bring  about  the  near-decriminalisation  of  many  corruption-related  crimes.  For 
example,  the  revised  definition  of  abuse  of  office  would  limit  the  undue  advantage  obtained  to 
pecuniary benefits and the scope of third parties to family members.  Similarly, the revised trading in 
influence  offence  would  restrict  this  to  the  promise  of  pecuniary  benefits  only,  and  require  that  the 
promise  is  followed  by  actual  intervention  to  generate  a  certain  outcome  and  obtain  a  benefit.  In 
addition,  criminal  action  for  embezzlement  would  have  to  be  preceded  by  a  preliminary  complaint 
introduced by the person suffering the damage, ruling out ex-officio investigations. Other amendments 
would  restrict  the  possibility  for  applying  extended  confiscation,  significantly  reduce  the  limitation 
periods and reduce the application of the ban on being elected or exercising a public function after a 
fraud and corruption sentence. Some changes have already been ruled unconstitutional. 128  

The  Venice  Commission  opinion  also highlighted the  incompatibility  with  international  conventions 
of  which  Romania  is  a  party.  129  Such  is  the  case  of  the  modification  related  to  certain  corruption-
related  crimes  in  law  78/2000,  which  would  restrict  the  elements  of  the  offences  to  requesting, 
receiving or accepting the promise of an undue advantage exclusively to material benefits and exclude 
third  parties  from  the  scope  of  beneficiaries.  In  its  decision,  the  Constitutional  Court  referred  to 
Romania’s  obligations  under  international  anticorruption  instruments.130    There  is  no  indication  that 
this issue of compatibility with international obligations has been the subject of debate in Government 
or Parliament.  

The overall climate created and reflected in these issues is also linked to a further concern that public 
institutions,  including  the  Court  of  Accounts,  seem  to  be  less  active  in  sending  notifications  of 
potential  corruption  crimes  and  frauds  to  the  DNA,  although  this  is  a legal  obligation  for  all  public 
institutions.131 An exception seems to be DLAF, the national counterpart of the European Anti-Fraud 
Office, which continues its notifications to DNA.  

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 
GRECO132.  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. 

This recommendation 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 are applied with the goal of 

        http://www.inspectiajudiciara.ro/Download.aspx?guid=ab9bdb64-9f0d-4997-b564-dce7a3c4a5c3|InfoCSM 
127    https://www.ccr.ro/noutati/COMUNICAT-DE-PRES-329. The Constitutional Court ruled on 7 November. 
128  CCR  decision  on 

corruption  78/2000  of  25  September  2018 
(https://www.ccr.ro/noutati/COMUNICAT-DE-PRES-327), and on the Criminal Code on 25 October 2018 
(https://www.ccr.ro/noutati/COMUNICAT-DE-PRES-338 ). 

law  on 

special 

the 

129    Articles 17, 18 and 19 of the United Nation Convention Against Corruption.  
130      United  Nation  Convention  Against  Corruption  and  the  Council  of  Europe  Criminal  Law  Convention  on 

Corruption. 

131    Cases following notifications of public institutions fell from 490 in 2016, to 370 in 2017 and 341 in 2018 
for  the  same  period  January-September;  the  reduction  of  notifications  was  even  sharper  coming  from 
private persons or entities: from 1740 in 216, to 1034 in 2017 and 849 in 2018. 

132      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. 

26 

 
 
                                                                                                                                                                                     
protecting MP in the exercise of their elective mandate.  Previous CVM reports have highlighted that 
transparent  criteria  for  such  decisions  would  be  an  important  way  to  prevent  doubts  about  the 
motivation  for  decisions.133  Criteria  would  help  to  put  these  decisions  on  a  more  transparent  and 
objective basis.134 

The  November  2017  report  mentioned  steps  taken  by  the  Chamber  of  Deputies  to  improve 
transparency  on  the  follow  up  to  requests  from  the  prosecution,  notably  by  starting  to  release  the 
arguments of the Legal Committee for rejecting or agreeing on requests from the prosecution before 
the plenary vote. The report welcomed the fact that consideration had been given to the need for more 
transparency.  However,  it  considered  that  more  work  was  needed  on  recommendation  10  and 
reiterated its advice to seek assistance of the Venice Commission and GRECO. 

In meetings with Commission services in 2018, the President of the Legal Committee of the Chamber 
mentioned  that  the  Legal  Committee  would  also  refer  to  the  criteria  elaborated  by  the  Venice 
Commission in any upcoming demand. This has not yet been formalised in the rules of the Chamber 
nor of the Senate. 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,    arguing that the crime in respect of which the prosecution made the 
request did not exist. No reference was made to criteria.     

As for the invitation to consider changing the law to clarify that Ministerial immunity related only to 
actions  of  ministers  during  their  time  in  office,  the  November  2017  report  noted  that  Parliamentary 
representatives  argued  that  this  would  need  a  Constitutional  change.  The  November  2017  report 
clarified  that  there  were  alternative  ways  of  making  this  clarification.  One  possibility  flagged  for 
consideration  would  have  been  to  amend  the  law  of  1999  on  ministerial  responsibilities,  such  as  to 
increase transparency and objectivity in decision-making on requests of starting criminal prosecution 
against former ministers, in order to safeguard the principle of equality before the law.135 There has 
been no follow-up in 2018 on this issue.  

In  the  period  September  2017–August  2018,  two  requests  for  starting  criminal  proceedings  against 
former ministers who are not MPs were accepted by the President of Romania. 
Regarding  the  second  part  of  the  recommendation  on  reporting  and  debate  on  these  issues,136 
Parliament informed that debates in Parliamentary committees and plenary are broadcast live and can 
also be viewed online after the session took place. There has been no follow-up reported in terms of 
opening up an opportunity to debate these issues. 

Benchmark  4:  Take  further  measures  to  prevent  and  fight  against  corruption,  in 
particular within the local government 

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). 

The January 2017 report highlighted the potential of the National Anti-Corruption Strategy presented 
by  the  Government  in  August  2016  to  be  an  effective  corruption  prevention  policy,  if  properly 
implemented and followed up on the ground, including at local level. EU funds can have a major part 
to play in supporting this work. 

133   CVM report January 2017 
134    Based on guidelines from the Venice Commission and GRECO 
135   Legea  nr.  115/1999-Lege  privind  responsabilitatea  ministerială,  republicată,  în  „Monitorul  Oficial  al 

României”, partea I, nr. 200 din 23 martie 2007. 

136   "to set up a system to report regularly on decisions taken by its Chambers on requests from the prosecution 
to authorise preventative measures such as searches or arrest or to authorise the investigation of an MP 
when he/she also is or has been a Minister, and to organise a public debate so that the Superior Council of 
Magistracy and civil society can respond". 

27 

 
 
                                                           
The  November  2017  report  noted  that  the  implementation  of  the  anti-corruption  strategy  had  been 
launched at technical level but that the strategy needed a visible political support from the Government 
and local authorities to demonstrate progress. The November 2017 report emphasised that in general a 
political  priority  should  be  set  on  corruption  prevention,  notably  by  putting  in  place  the  necessary 
measures to fully  support the  implementation  of the Strategy  at  both  central  and  local level,  and by 
ensuring  the  stability  of  the  relevant  legal  framework,  as  well  as  by  maintaining  the  positive  track 
record of the General Prosecution. 

In March 2018, the technical secretariat for the National Anti-Corruption Strategy published its first 
monitoring  report  "Progress  Report  on  the  implementation  of  the  National  Anticorruption  Strategy 
2016-2020  in  2017".137  The  progress  report  is  a  compilation  of  the  actions  performed  by  the  public 
authorities  and  institutions  under each  of the six  general  objectives.  It  also  includes  an  inventory  of 
institutional  transparency  and  corruption  prevention  measures  as  well  as  an  update  of  integrity 
incidents and a brief presentation of structural corrective measures taken to prevent new incidents. The 
progress report presents many actions under the objectives related to the capacity to address failures in 
management,  to  identify  corruption  risks  and  to  reduce  vulnerabilities.138    It  also  reports  on  the 
implementation of measures to increase transparency and open governance at central and local level, 
anti-corruption  training  for  staff  within  local  and  central  public  institutions139  and  also  actions 
regarding  the  adhesion  declarations  of  public  institutions  to  the  Strategy.140  Activity  on  the 
administrative sanctions regime and its implementation appears less advanced and this appears to have 
remained the case for 2018. 

Platform  meetings  in  April  2018  have  discussed  whether  the  set  of  actions  performed  by  public 
authorities are in line with the calendar of implementation and whether these meet the objectives of the 
strategy, although this information does not appear specifically in the progress report.  

Since  the  annual  report  in  March  2018,  the  clearest  example  of  progress  has  been  in  the 
implementation of actions under the objective 4.1 (increasing the level of anticorruption education of 
the  staff  within  authorities  and  institutions  at  central  and  local  level  through  trainings  on  integrity 
issues).141  An important achievement in 2018 was also the adoption by the Government in August of 
two standard methodologies for institutions at central level: one for the evaluation of corruption risks 
and a second for the ex-post evaluation of integrity incidents. The two texts were debated within the 
cooperation platforms and interinstitutional working groups. One priority for 2018 has also been the 
preparation of internal auditing of the systems for preventing corruption within all institutions, which 
should take place every two years.142 

The Technical Secretariat for the national Anti-Corruption Strategy within the Ministry of Justice has 
continued  to  organise  thematic  evaluations  of  public  institutions  for  2018-2019.  The  chosen  themes 
are  conflicts  of  interest  during  and  after  holding  a  public  office  (including  revolving-doors); 
transparency  of  public  institutions  (which  include  state-owned  enterprises)  and  access  to  public 
information,  and  incompatibilities.  Ten  institutions  within  the  central  public  administration  and  ten 
independent  institutions  will  be  evaluated  in  2018-2019.  The  evaluations  aim  to  check  how  these 
institutions define their corruption risks in these areas and the measures in place to prevent incidents. 

137   https://sna.just.ro/Rapoarte+de+monitorizare 
138      Examples  include  an  Ethics  Code  for  the  pre-university  system;  a  transparent  framework  for  inspectors' 
competitions;  a  system  sanctioning  plagiarism;  a  Protocol  for  ethical  training  in  schools;  and  video  and 
audio monitoring of exams in the education system. 

139    With DGA (In 2017, 3.877 training activities, integrity classes and prevention campaigns). 
140    For 2016-2017, 1.667 adhesion declarations and 757 integrity plans have been centralised regarding central, 

local and independent authorities.  

141      https://sna.just.ro  does  not  mention  activities  performed  in  2018,  but  the  website    http://ogp.gov.ro/    and 
http://data.gov.ro/ro/ for open data partnership mentions a  series of actions and events for 2018 regarding 
transparency and public consultation process. 

142   The purpose of this objective 2.1.1. is to internalise the peer review mechanism of the strategy within the 

public institutions. 

28 

 
 
                                                           
The  peer  review  evaluations  will  be  supported  by  EU  funds.  The  total  EU  funding  to  the 
implementation of the Strategy through a variety of projects amounts to EUR 9,7 million.143 

During  the  CVM  mission  of  October  2018,  Commission  services  also  received  information  on  the 
measures  taken  within  central  ministries  in  vulnerable  sectors  such  as  health,  education,  and  the 
interior.  The  Ministry  of  Education  reported  on  prevention  measures  in  higher  education 
establishments and schools, measures against plagiarism, and the evaluation of integrity incidents. The 
General Anti-corruption Directorate (DGA) within the Ministry of Interior reported on its continued 
activity for the prevention of corruption and investigation of integrity incidents.144 The Directorate has 
a long-standing track record in this area. Progress with the measures foreseen in the healthcare sector 
appears less evident, the Ministry of Health reporting exclusively on some aspects related to internal 
control during the mission. The thematic peer-review evaluation carried out in October 2017145 pointed 
to a number of structural weaknesses in the implementation of the strategy in this sector, including a 
continued  lack  of  resources  at  the  level  of  the  control  and  integrity  department  of  the  Ministry  of 
Health, making a number of recommendations.146  

Regarding the implementation of the National Anti-corruption Strategy at local level, the Ministry of 
Regional  Development  and  Public  Administration  also  published  a  progress  report  for  2017.  The 
efforts of the Ministry are aimed at involving as many local public administrations as possible in the 
monitoring mechanism of the Strategy. The percentage of local public institutions involved has now 
risen to 45% from 16% in the previous cycle, though this remains far below participation at central 
level. The report further notes a drastic reduction of the annual self-assessment reports, to only 8% in 
2017.    From  the  report  it  appears  that  many  local  authorities  do  not  have  sufficient  knowledge  or 
administrative  capacity  to  implement  the  measures  of  the  Strategy.  It  was  also  found  that  there  is  a 
lack of self-awareness and promotion of good practices or innovative measures. The priorities for the 
implementation of the Strategy at local level seek to address these weaknesses by including specific 
trainings and awareness raising. One ongoing project concerns an interactive map of good practices in 
corruption prevention identified in local administrations.147 

One of the objectives of the Strategy is to improve performance in the fight against corruption by the 
application of criminal and administrative sanctions. The institutions responsible for this objective are 
the National Integrity Agency (ANI), the National Anti-Corruption Directorate (DNA) and the General 
Prosecution  Services.  Results  for  ANI  and  the  DNA  were  comparable  to  previous  years  (see 
recommendations 8, 9 and 10). Since September 2017, the Public Ministry pursued the prosecution of 
corruption  crimes  not  falling  under  DNA’s  remit,  with  2046  cases  solved,  with  325  indictments 
against 483 persons and 2016 final court decisions. 148 

Another  objective  of  the  Strategy  is  to  consolidate  the  confiscation  of  criminal  assets  (see 
recommendation 12). In 2018, the General Prosecution (including DIICOT) seized more than EUR 2 
billion as provisional measures in cases relating to tax evasion, EUR 38 million in money laundering 
and  EUR  128  million  in  smuggling  cases.    The  results  of  the  Public  Ministry  in  the  fight  against 
corruption are stronger than last year. 

While the technical activity on the Strategy continues in many central and local administrations and 
the  judicial  institutions  continue  to  sanction  corruption,  several  ongoing  legislative  initiatives  raise 

143    Support  for  National  Anticorruption  Strategy  is  made  available  from  the  Specific  Objective    2.2  of  the 
Administrative Capacity Operational programme (POCA) and within this objective there have been 6 calls 
for  proposals  in  order  to  support  its  implementation  by  both  central  and  local  authorities,  including  the 
technical  secretariat  of  the  NAS.  The  total  amount  contracted  is  EUR  9.635.600,  of  which  for  central 
institutions: EUR 7.278.657 and for local public admin: EUR 2.356.943. The anticorruption measures that 
refer to the judicial system are included in the funding of the Strategy for Justice (recommendation 6). 

144   Exemples of prevention activities in 2018: http://www.mai-dga.ro/arhive/43423  
145   http://sna.just.ro/docs/pagini/51/Raport%20de%20evaluare%20tematica%20Ministerul%20Sanatatii.docx. 
146   Information on the follow-up given to these recommendations  will be available towards the end of the year  
147    http://greencity.mdrap.ro/ 
148    For  cases  of  conflict  of  interest  or  using  one's  office  for  favouring  certain  individuals:    24  indictments 

involving 30 persons, 10 final court decision.  

29 

 
 
                                                           
concerns  as  regards  their  potential  knock-on  effects  on  the  implementation  of  the  strategy.  In 
particular,  as  mentioned  earlier,  the  amendments  to  the  Criminal  Code  and  the  Criminal  Procedure 
Code  and  amendments  to  the  special  corruption  law  adopted  by  Parliament  on  4  July  and  18  June 
respectively  also  risk  weakening  the  legislative  framework  for  investigating  and  sanctioning 
corruption  crimes.  (See  recommendations  10,  3).  Also  linked  are  the  amendments  concerning  the 
integrity laws, which risk weakening the impact of the integrity laws and the credibility of sanctions 
(See  recommendation  8).  The  ongoing  reform  of  the  Administrative  Code  should  also  support  the 
implementation of the National Anti-Corruption Strategy by  strengthening the professionalization of 
the  national  and  local  public  administration  and  thereby  the  effective  implementation  of  corruption 
preventive measures, such as the responsibility of managers of public institutions in the prevention and 
occurrence of integrity incidents.149 

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. 

The January 2017 CVM report noted that the National Agency for the Management of Seized Assets 
(ANABI) has been set up and that the next step was to demonstrate it could function properly, provide 
transparent data on the confiscation of criminal assets and eventually increase the proportion of assets 
effectively recovered. The November 2017 report noted that the Agency had become operational, had 
its own building, administrative departments in charge with financial and human resources, and had a 
staff of about 25 people, which was already half of the planned staff for full operations.  ANABI had 
published its first annual report in February 2017. 

Since November 2017, ANABI has continued to take its activities forward. In March 2018 the Agency 
published  its second  annual  report  providing  detailed description  on  the  activity  of  2017  and  on the 
priorities for 2018.150 It increased its activity of storage and management of seized movable assets and 
also  organised  the  sale  of  movable  seized  assets.  In  the  period  January-August  2018,  ANABI 
registered nine new requests for storage and management of seized moveable assets and 27 requests 
for  interlocutory  sales.  ANABI  organised  public  auctions  relating  to  seven  requests  of  interlocutory 
sales (when specific circumstances justify immediate action, for example when perishable goods are at 
stake, before a final court decision). In several complex cases, the Agency demonstrated its capacity to 
deal with new situations and find solutions.  The Agency is also engaging in knowledge sharing and 
awareness raising activities for law enforcement and prosecutors as regards seizing and confiscation 
orders.  

Since June  2017, the  unique  bank  account through which the  Agency  took  over the  management  of 
seized money is operational.  As a result, ANABI manages and keeps track of the funds involved, such 
as the amount  subject  to  seizure,  the  amount resulting  from  the  selling  of  perishable  goods, and the 
amount resulting from the interlocutory sales. At the end of the first semester of 2018 the unique bank 
account totalled about 70 million lei (EUR 15 million, about three times the amount of 2017). 

ANABI  also  monitors  the  aggregated  data  of  amounts  of  money  actually  seized  in  criminal 
proceedings. During 2018, there has been an increase. In total 780 million lei had been seized by the 
second  quarter  of  2018.151  Between  September  2017  and  August  2018,  the  General  Prosecution 
(including DIICOT) seized EUR 137 million as provisional measures in cases relating to tax evasion, 
EUR 15 million in money laundering and EUR 128 million in smuggling (including DIICOT).  

Regarding  the  execution  of  final  court  decisions,  the  National  Agency  for  Fiscal  Administration 
(ANAF)  reports  that  787  court  decisions  relating  to  confiscation  remained  final  during  2017,  an 

149    https://www.senat.ro/Legis/PDF/2018/18L132LP.pdf.  The  Administrative  Code  has  been  adopted  by 
Parliament in July and is being challenged at the Constitutional Court. On 7 November, the Court ruled that 
the Administrative Code was unconstitutional. 

150    https://anabi.just.ro/docs/pagini/52/Raport%20anual%20ANABI%202017.pdf  
151    From a total of about 10000 court decisions issued by 224 Courts 

30 

 
 
                                                           
increase  with  regard  to  2016  (491  final  court  decisions).    The  total  amount  resulting  from  the 
enforcement of special or extended confiscation measures is approximatively 11,5 million lei, out of 
which 3,7 million lei originates from the selling  of movable and immovable seized property, and 7,8 
from confiscation.  The amount to be distributed for 2018 to eligible beneficiaries for social and public 
re-use was 2,2 million lei.152 Part of this should be allocated to funding civil society projects153 such as 
legal  education,  criminality  prevention,  assistance  to  victims  and  other  projects  of  public  interest.  
Because  of  insufficient  administrative  capacity,  the  agency  was  so  far  unable  to  launch  a  call  for 
proposals in this area. More generally, ANABI faces difficulties filling in open positions, a situation 
similar to other public institutions resulting from a generalised recruitment ban in the Government.154 
Early October the agency was operating with a staff of only 20 people out of a scheme of 35 foreseen, 
which limits the capacity of the agency to a strict focus on core activities.155 

The Agency has successfully applied for technical assistance with EU funds (EUR 1,3 million). The 
project  has  started  recently  and  will  allow  the  externalisation  of  some  tasks  to  support  the  agency, 
notably on the organisation of grants and training activities for prosecutors. The agency further reports 
that  the  cooperation  with  prosecution services  and  police  is  effective.  A  high  number  of  cases  dealt 
with by the Agency come from economic crime police and organised crime prosecution. 

The  Agency  has  also  progressed  on  the  development  of  a  national  integrated  system  ROARMIS 
(Romanian  Assets  Recovery  and  Management  Integrated  System).  The  aim  of  this  system  is  to 
provide information on the different stages of the asset recovery process, starting with the first phases 
of identification and tracking of assets, followed by seizing the proceeds of crime and other types of 
assets  and  ending  with  the  procedures  related  to  the  final  execution  of  special  or  extended 
confiscation,  damages,  or  a  decision  on  the  reuse  for  public  or  social  interest.  This  IT  system  will 
allow  monitoring  the  measures  taken  by  the  authorities  at  each  step  of  the  asset  recovery  process. 
Using its analytical functions ROARMIS may also become a very useful tool in generating statistics 
and reports, best practices and identifying priority areas for the development of policies, strategies and 
plans  to  increase  efficiency  in  the  process  of  asset  recovery  in  Romania.  ANABI  finalised  detailed 
technical specification in September 2018 and plans to have the system in place by October 2019.  

The Agency is also operating as Asset Recovery Office. During the first and second quarter of 2018, 
the  Romanian  Asset  Recovery  Office  has  dealt  with  72  incoming  requests  (requests  from  other 
Member States) and 38 outgoing requests (requests to other Member States). The Member States most 
frequently requesting information were the United Kingdom, France, Italy and Spain and ANABI sent 
the largest number of requests to Germany, the United Kingdom and Italy.  

152   In 2017, 20 million lei from 2016 were redistributed according to art.37 of ANABI Law to the Ministries of 

Education, Health, Internal Affairs, Justice and the Public Ministry.  

153    According to same art.37 of ANABI Law 318/2015 
154   Law no. 80/2018  for the approval of EOG no. 90/2017 regarding fiscal and budgetary measures (art. 14 of 
the  EOG  stipulated  that  competitions  for  vacancies  are  suspended  for  2018);  another  EOG  stipulated  the 
same since summer 2017 

155    In  October,  ANABI  started  procedures  for  transfer  recruitment  for  filling  6  vacant  positions  (5  public 
officials  and  one  contractual).  The  Ministry  of  Justice  approved  the  transfer  of  a  legal  advisor  starting 
November 2018. 

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