INTRODUCTION -
The Cooperation and Verification Mechanism (CVM) was set up at the accession of Romania
to the European Union in 2007. It was agreed that further work was needed in key areas to
address shortcomings in judicial reform and the fight against corruption. Since then CVM
reports have charted the progress made by Romania and have sought to help focus the efforts
of the Romanian authorities through specific recommendations.
Judicial reform and the fight against corruption remain important issues for Romanian society,
able to inspire large-scale public demonstrations, and further support to the consolidation of
reform is still needed to ensure the irreversibility of progress. The CVM continues to play an
important role in Romania as driver for reform and an incentive to maintain consistency in
track record. The Commission's conclusions and the methodology of the CVM have
consistently enjoyed the strong support of the Council, as well as benefiting from
cooperation and input from many Member States.
The 2015 CVM report noted a number of areas of continued progress showing signs of
sustainability, notably through the action taken by the key judicial and integrity institutions to
address high-level corruption and the increased professionalism in the judicial system as a
whole. At the same time, the report highlighted that there remains a strong sense that progress
needs to be consolidated and further secured, with many legislative issues outstanding and
doubts about the political consensus behind reform. The Council also concluded that an
overall, continued political commitment to sustained reforms and respect for the
independence of the judiciary are essential in order to ensure the sustainability in progress
towards the CVM objectives. This report returns to both trends to assess the extent to which reform has taken root. It is the
result of a careful process of analysis by the Commission, drawing on close cooperation with
the Romanian authorities, as well as the input of civil society and other stakeholders. It also
looks at a number of important tests in 2016 to further demonstrate sustainability. The
sustainability of progress is one of the conditions to show that a mechanism like the CVM
would no longer be required. The Commission has paid particular attention to these aspects in
its monitoring this year and will continue to support Romania to achieve the CVM objectives.
Support is already provided to Romania in many areas under the European Structural and
Investment Funds.4
In addition, the Commission has in 2015 established a new instrument in
the form of a Structural Reform Support Service (SRSS) dedicated to providing technical
assistance to the reform efforts of EU Member States in a broad range of areas. The
Commission encourages Romania to make full use of all the possibilities provided.
1
Conclusions of the Council of Ministers, 17 October 2006 (13339/06); Commission Decision establishing a
mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the
areas of judicial reform and the fight against corruption, 13 December 2006 (C (2006) 6569 final). http://ec.europa.eu/cvm/key_documents_en.htm. http://data.consilium.europa.eu/doc/document/ST-7281-2015-INIT/en/pdf
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In the 2007-2013 period Romania has implemented a number of projects in the anti-corruption and judicial
reform area.
The total amount of funding from the European Social Fund (ESF) is EUR 16 million. The main
beneficiaries have been the Ministries of Public Administration, Justice, Education and Health. European
Regional Development Funds (ERDF) were invested in actions relating to integrity control projects
(including the ex-ante control system PREVENT), capacity of public procurement agency for a budget of
about EUR 15 million. In the 2014-2020 period the Administrative Capacity Programme (ESF) will provide
funding of about EUR 103 million for judicial reform projects, including EUR 35 million specifically for
anti-corruption, and EUR 35 million to support improvements in public procurement. ERDF resources up to
EUR 15 million will be invested in capacity building and technical assistance in public procurement, in fraud
prevention for Management Authorities and in the Fight Against Fraud Department (DLAF). STATE OF PLAY OF THE REFORM PROCESS IN ROMANIA, Judicial independence
Appointments
Recent CVM reports have noted the role of the key institutions of the magistracy – the High
Court of Cassation, the Public Ministry and the National Anti-Corruption Directorate, and the
Superior Council of the Magistracy – in building up the credibility and professionalism of the
judicial system through establishing a track record. Clearly the leadership of those
institutions has played an important part in this, sometimes in the face of strong personal
criticism. Hence the emphasis placed on transparent and merit-based selection procedures as
a way to provide robust leadership, avoid political interference in senior appointments and
support judicial independence.
The 2015 report saw the nomination of a new Chief Prosecutor for the Directorate for
Investigation of Organised Crime and Terrorism as an important test case. The procedure
was eventually finalised with little controversy: it was characterised by increased
transparency and predictability (publication of post, criteria publicly defined, names of
candidates published), and benefitted from clear cooperation between the Minister of Justice
(responsible for choosing the candidate) and the Superior Council of the Magistracy. It
therefore provided a good example of how clear and robust procedures, with the full
involvement of the key authorities, can be the most important factor in a credible
appointment process (although procedures must also be strong enough to cope with a
situation where the key institutions are in disagreement ).
2016 will see a series of appointments to key posts and both the process and the results will
be a key test of the ability of the judicial system to maintain the reform process through a
time of change.
The President of the High Court of Cassation and Justice, the General
Prosecutor and the Chief Prosecutor of the National Anti-Corruption Directorate are all posts
which need clear, open, and predefined procedures. In the longer term, a more robust and independent system of appointing top prosecutors
should be settled in law: no criteria exist at legislative level for ensuring the highest level of
professional skills and integrity, and the current procedure includes a strong political element
in terms of the role it gives to the Minister of Justice. Past appointment procedures have
been the subject of considerable controversy and subject to clear political influence. Using
guidance from the Council of Europe, the Minister of Justice and the Superior Council of the
Magistracy should lead the debate about whether it is appropriate for the key decision to rest
with a government Minister,10 particularly when it comes to appointments at levels below the
top management of institutions. COM (2015) 35 final; COM (2014) 37 final; COM (2013) 47 final; COM (2012) 410 final. The former chief prosecutor of the Directorate (DIICOT) is in preventive detention on corruption charges,
highlighting the need to bring any integrity issues to the surface. For example, the appointments to the senior posts of the prosecution in 2012-13 were a source of
controversy. General Prosecutor and Chief Prosecutor of the DNA: May 2016, President of the High Court of Cassation
and Justice: September 2016, Superior Council of Magistracy: elections in Q4 2016. The nomination procedure for the Chief Prosecutor of DIICOT also applies to all senior prosecutors, their
deputies and includes the level of heads of sections in the Public Ministry and the DNA. In total, there are 15
prosecution posts to be chosen by the Minister of Justice this year. The Venice Commission has undertaken specific work in this area to find the right balance (see technical
report section 2.1, pp 6-8). Respect for judges and the judicial process
The successful prosecution and conviction of many prominent politicians in Romania for
high level corruption is a sign that the underlying trend of judicial independence is positive,
and that no one committing a crime is beyond the reach of justice. But there has also been a
reaction to this trend: criticism of magistrates by politicians and in the media and lack of
respect of judicial decisions remain frequent. This year there has been an increase of
requests to defend the independence of justice, following attacks in the media and by
politicians, including the Prime Minister and the President of the Senate. There were also
still cases of pressure on judges of the Constitutional Court. As the 2015 report noted, in the
wake of the election of the President of Romania, there seemed some shift towards a more
responsible approach. But this dissipated in the spring, notably following the opening of an
investigation by the National Anti-Corruption Directorate (DNA) into the Prime Minister.
Criticism targeted the Heads of both the DNA and the High Court of Cassation and Justice
(HCCJ) personally. The Superior Council of Magistracy (SCM) and the Judicial Inspection have continued in
2015 to defend the independence of justice and the professional reputation, independence and
impartiality of magistrates. There continue to be several examples notified to the SCM of
attacks in the media and by politicians, and the SCM has had to issue many critical
conclusions as a result. But the SCM cannot secure an equivalent level of coverage for its
press statements compared to the initial criticism; and beyond this moral support, the SCM
offers no financial or legal help for magistrates seeking redress in court.
There is also a potential role for parliamentary authorities in monitoring the comments of
parliamentarians. The Commission recommended last year to "ensure that the Code of
Conduct for parliamentarians includes clear provisions so that parliamentarians and the
parliamentary process respect the independence of the judiciary". This recommendation
has not been followed. It also noted that the debate on possible changes to the Constitution
could give an opportunity to consolidate judicial independence at Constitutional level.
The Constitutional Court and respect for court decisions
The Constitutional Court (CCR) has an important role in the rule of law and in the
consolidation of an independent justice system. The Court's rulings in 2015 included 24
decisions concerning the provisions of the new Criminal Code and Code of Criminal
Procedures, and some important rulings linked to the balance of powers and respect for
fundamental rights. These included resolving a conflict between the Senate and the judiciary
concerning a request for preventive arrest. Many CCR decisions on the Criminal Codes
aimed at reinforcing respect for fair trials and rights of the parties in line with ECHR case
law. Though judges and prosecutors had to quickly adapt their practices to the CCR's
decision, the general appreciation is that such decisions improve legal certainty and the rights . As also reported in previous CVM reports: COM (2013) 47 final, p4; COM (2014) 37 final p3; COM (2015)
35 final, p2. Technical report, section 2.1, p5. For example in the context of an ongoing case on the way the Constitutional Court took a decision
concerning the organisation of the 2012 referendum on impeachment of the then President of Romania.
Technical report, section 2.1, p5. For example, in a public letter to the President of Romania, the President of the Senate, referring to a case of
a person acquitted in first instance but in preventive arrest for 6 months, requested the revocation of the
President of the HCCJ and of the Chief Prosecutor of DNA. Technical report, section 2.1, p5. Technical report, section 2.1,pp 5-6. COM (2015) 35 final, p.13; COM (2014) 37 final. Technical report, section 2.1, p4.
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of litigants. The decisions of the High Court of Cassation and Justice (HCCJ) on the
interpretation of the law also play an important role in the institutional checks and balances. Judicial reform
New Codes
The new Criminal Code and Code of Criminal Procedures entered into force two years ago,
on 1st February 2014. The 2015 CVM report looked forward to a stable legislative
environment for the new Codes, a clear objective of the Codes on adoption. However, almost
two years on, this stability seems no closer.
A persistent source of instability has been recurrent parliamentary proceedings on the Codes.
Some amendments are inevitable and in consultation with the judiciary, the Government
proposed amendments to address identified problems as early as spring 2014.
However, these
amendments have not yet been adopted by Parliament. At the same time, parliamentary
attention has been given to a number of amendments which have been the source of
controversy. Amendments have attracted criticism from the judicial authorities, civil society
and Member States on the grounds that that they would harm the fight against corruption and
reduce the capacity of law enforcement authorities and courts to prosecute or sanction. Whilst
some of these could be characterised as maverick amendments, others have been passed by
one chamber of the Parliament and have been given the benefit of urgency procedures whilst
the Ministry of Justice amendments have had to wait. Some of the past year's amendments
recalled the amendments passed in December 2013, though it is to be noted that in contrast to
that occasion, the amendments have not been agreed by the legislature. All amendments
need again to be considered by the Chamber of Deputies as decisional chamber. The debate
has not resumed after summer recess though new amendments continue to be tabled,
maintaining an ongoing state of uncertainty. Parliament should resolve the situation by
respecting the opinion of the judicial authorities. A series of Constitutional Court judgements raised important issues about the Codes and
required amendments to be made. Some of the issues raised address fundamental issues in the
new Codes, such as the idea that a preliminary procedure to clear more technical issues in a
case could take place without the presence of the parties. Although the judiciary and the
government have immediately adapted practice or proposed legislative amendments, legal
uncertainty cannot be avoided as long as the amendments are pending in Parliament.
At the same time as these discussions on the legal framework, work has continued on
implementing the Codes as adopted. The general perception is that judges and prosecutors
have expressed their satisfaction with the new legal framework, and that the judicial
institutions, judges and prosecutors, and court clerks, have continued their efforts to make the
reform work.
The High Court of Cassation and Justice, the General Prosecutor, the Superior Council of
Magistracy, the National Institute of Magistracy and the Ministry of Justice have all made
specific efforts to offer intensive support to all courts and prosecutor offices targeted on
18
For example, decisions on whether doctors in public hospitals are public servants.
Technical report, section 2.1, p4. Amendments passed by the Parliament in December 2013 attracted criticism from judicial authorities and the
international community, notably to the extent that they had the effect of exempting parliamentarians from
the scope of legislation covering corruption offences like bribe taking, trading in influence and abuse of
office (see COM(2014) 37, pp 10-11).
20 Technical report, section 2.2, p10.
6
helping the transition and tackling obstacles. The Minister of Justice continued to take steps
to supplement the number of positions, in particular court clerks and investigators. This work
has been supported also by thorough training programmes by the National Institute of
Magistracy and the National School of Clerks.
In general, this is also true for the implementation of the civil codes, with the transitional
period needed to tackle cases predating the new codes in parallel with new cases now largely
complete. There is evidence that the goal of greater effectiveness in the provision of justice
has been achieved. However, the logistical arrangements needed to implement provisions
that should have entered into force on 1 January 2016 are well behind schedule, with less
than a quarter of the necessary premises ready. The result is that the entry into force of these
aspects of the Civil Procedure Code has been delayed by one year. It will be important to have
a clear plan in place and implemented to avoid a further postponement.
Consistency of jurisprudence
In line with its constitutional role, the High Court of Cassation and Justice (HCCJ) has the
primary responsibility for developing the consistency of jurisprudence and enforcing uniform
interpretation of law and practice. This has become an increasingly important aspect of the
HCCJ's work, triggered through defined legal mechanisms but also encouraged through
managerial steps such as meetings and discussions at national level with representatives of
courts of appeal, the Superior Council of Magistracy and the National Institute of Magistracy.
Such meetings focus on issues where divergent interpretations exist and common solutions
are communicated to all courts through guidelines.
The HCCJ has two legal mechanisms at its disposal for developing consistency of
jurisprudence and providing a unitary interpretation: the preliminary ruling and the appeal in
the interest of the law. The number of requests for preliminary rulings continues to increase
and an increasing share of the work of the HCCJ’s sections is dedicated to the solving of
preliminary questions.24 This suggests that the mechanisms work well and that judges in
lower courts make use of it.
The other consistency mechanism, appeals in the interest of the
law, also continues to provide a substantial contribution to unification. The use of the
preliminary ruling should continue to be encouraged for settling unclear provisions in the new
Codes.
Despite all these measures and signs of a cultural shift in favour of consistency, inconsistent
decisions are still frequently reported. Whilst some issues relating to the new Codes should be
resolved through the passage of time, some more structural problems require further attention
from court managers and each magistrate, and continued training, also involving lawyers.
Finally, the availability of online open and searchable access to all court decisions has been a
recommendation of CVM reports, as one of the means to help magistrates and all parties to
21 Technical report, section 2.2, p10. Technical report, section 2.2, p12. Notably the provision of premises to allow for the solving of cases in Council chamber. In criminal matters, there were 35 preliminary questions lodged and 33 settled in 2015, compared with 31
preliminary questions lodged and 28 settled in 2014. There is a strong increase in civil and administrative
matters: there were 51 preliminary questions lodged and 47 settled in 2015, compared with 17 questions
lodged and 13 settled in 2014.
25 In 2015, 18 appeals were lodged and 19 were settled in civil matters; 6 appeals were lodged and 7 were
settled in criminal matters. This mechanism can also be used for procedural questions, which is not the case
for preliminary rulings, refer to similar cases and decisions. A project (to publish all court decisions online, under
discussion for some years) has finally been put in place.
Strategy for the Development of the Judiciary 2015-2020
The action plan 2015-2020 for the implementation of the Strategy is nearly finalised and
consultations with all stakeholders have been organised. It will be important for this action
plan to enjoy real common ownership between all the key actors if it is to serve as an
operational tool: the process to reach the action plan has been lengthy and there is a sense that
renewed momentum is needed. For example, it will be important to be clear to what extent the
new Superior Council of Magistracy sees this as a blueprint for its own action.
More generally, the elections to the new Superior Council of Magistracy (SCM) could be used
to give further momentum to reform. Even if some of the current Council continue in post, it
would seem important that the new Council has a clear collective philosophy on the basis of a
new programme. Candidates should be expected to give a clear vision of how they see their
role, and expect to be held accountable for the results – the election process should provide
the opportunity for candidates to debate how they see the future of reform. The new Council
should address concerns from many magistrates that the SCM is disconnected from the
profession. More than thousand magistrates had to sign a petition for the SCM to be
persuaded to organise a consultation of all courts on a new system for appointing, evaluating
and promoting magistrates. The next SCM could demonstrate further its commitment to
transparency and accountability, for example by being ready to set out and explain its policies
and decisions in regular open meetings with assemblies of judges and prosecutors at all levels,
as well as with civil society and professional organisations. Agreeing an annual report to be
discussed in courts' and prosecutors' general assemblies would also be a practical
demonstration of more transparency in the Council's work.
Resource management and efficiency
The Minister of Justice successfully made the case for the importance of reform of the justice
system and the government supported for example 390 additional posts while the budget
increased by 46% since 2013.
The effective use of such resources will be assisted by the development of useful management
tools for the judicial system. Statistical information tools have been installed in all courts and
are being used to improve service delivery. Other electronic tools such as e-files for parties
and judges are being piloted in several courts. Structural reform of the justice system also
needs to be accompanied by the modernisation of the buildings and IT systems: a number of
construction or rehabilitation works in courts supported by World Bank loans are ongoing.
However, the challenges to effective resource management were underlined when a
(relatively modest) proposal to close small courts stalled in Parliament. The Superior Council
of the Magistracy and the Ministry of Justice have been exploring alternative solutions such
as changing the boundaries of jurisdictions to share the burden of cases better – a decision
which can be made at their level. In October the Government approved a decision of
reassigning the jurisdiction localities within the area of jurisdiction of the Court of Appeal of
Cluj. At prosecution level, the General Prosecutor has proposed to regroup prosecutors at
26 COM (2014), p13.
27
SCM elections are planned in autumn 2016, with the new Council expected to take office in January 2017. It
is not clear whether the elections will renew all members or only those that finished their six year mandate. Technical report, section 2.5, p21.Tribunal (second instance) level and close prosecutors' offices at first instance, looking at
offices which are too small or have low workload, and finalised an impact study in December
2015 to be consulted with the system. However the finalisation of the process and deadline for
implementation are unclear.
Amendments to the civil code of last year provided that court judgments could be enforced
directly by bailiffs, aiming at speeding up the procedure. However, these were annulled by the
Constitutional Court in December. In fact, the Superior Council of Magistracy reports an
increase of the number of non-litigious enforcement cases pending in court. Steps are planned
under the action plan for 2015-2020 to improve the enforcement of judgments, such as setting
up an electronic database to monitor cases of forced execution of cases, but there is clear
evidence that the enforcement of judgments, including final court decisions against the state
(central or local authorities), often remains problematic. This is an area which could be
relevant in the context of wider efforts by the Romanian government to modernise public
administration.
2.3. Integrity
The National Integrity Agency and the National Integrity Council
In March 2015, the President of the National Integrity Agency (ANI) resigned following the
launch of an investigation by the National Anti-Corruption Directorate (DNA). The Vice-President
of ANI acted as interim President and was appointed in December as President
following a competition organised by the National Integrity Council (NIC). Though the
procedure was lengthy, it appeared open and transparent.
The NIC is the oversight body for ANI. Its mandate expired in November 2014. The initial
process for appointing a new NIC was subject to a number of controversies.These initial
controversies were eventually resolved and the Council started its work in February 2015. The
NIC elected the representative of civil society as its President, a helpful message in terms of
independence. The main task of the NIC in 2015 has been the selection process of the new
ANI President.
Despite the resignation of its President, ANI has continued to process a high number of cases
during the reporting period. ANI continued to initiate a substantial number of cases on
conflicts of interest and incompatibility issues, many of them concerning local politicians. This shows a problematic feature of low acceptance and even resistance to integrity rules
within a substantial number of local authorities, with implications for public procurement. A high percentage of ANI decisions are challenged in court – ANI has about 3000 files to
defend in court – but the confirmation rate of ANI decisions in court is still above 80%. The
administrative section of the High Court of Cassation and Justice has made efforts to speed up
the treatment of ANI files (which represent some 10% of its workload) and has reduced the
deadlines for solutions from 18 to about 9 months. Regarding criminal conflicts of interest, The former President of ANI has been indicted in a case of abuse of office when he was a member of the
Commission for Restitution of Properties. The case is not linked to his mandate at the National Integrity
Agency. He resigned immediately after the start of the investigation.
30 COM (2015) 35, p9. Technical report, section 3.1, pp 22-23.
ANI's overall track record was stable compared to 2014. In 2015, 84% of the incompatibility cases, 66% of the administrative conflicts of interest cases and 66% of
the criminal conflicts of interests cases concern mayors, deputy mayors, local councillors or county
councillors. This trend is confirmed in the work of the National Anti-Corruption Directorate. ANI has further developed the cooperation with the prosecution to help streamline
investigations and exchange information.
The follow up of ANI's final decisions and their confirmation through final court rulings
remained an issue in 2015. Two cases in Parliament saw significant delays before final
decisions on incompatibility were carried through into the ending of a parliamentarian's
mandate. ANI had to resort to applying contravention fines or notifying the prosecution. The Commission's 2015 recommendation to "look again at how to ensure that court decisions
requiring the suspension from office of parliamentarians are automatically applied by
Parliament" therefore remains valid.
The "Prevent" IT system for ex-ante check of conflicts of interests in public procurement has
been taken forward and when implemented, should make a real contribution to avoiding
conflicts of interest by automatically detecting conflict of interests in public procurement
before the selection and contract award procedure. To ensure compliance with the obligations
of the new EU public procurement Directives, further legislative and institutional steps will be
needed to ensure that verification applies to all relevant decision-makers, in line with the
definition of conflicts of interest in the Directives. The Directives also require that the
relevant institutions have the power to prevent the signature of contracts in case of suspicion
of conflict of interests. ANI estimates that almost all the conflict of interest cases it pursues
are relatively straightforward cases which could be avoided by use of this system. Though
implementation has taken longer than expected, the law was adopted by the government in
September and is being discussed in Parliament. It will be important that the law maintains
the principle that contracting authorities are under an obligation to act when they are notified
of a potential conflict of interest. "Prevent" should be ready to start operating as soon as the
law is adopted. It would apply first to public procurement involving EU funds, but be
extended rapidly to all electronic public procurement.
The integrity framework
The 2015 CVM report noted that moves to codify the legal framework for integrity in the
interests of coherence and clarity had been put on hold due to concerns that existing rules
might be watered down. The desirability of such a step has been confirmed by several
parliamentarians and the President of Romania. However, the fact that one chamber of
Parliament has adopted an amendment which would in effect take away the three-year
election ban for elected officials found incompatible reinforced these concerns.
A key test case will come with the forthcoming local elections (June 2016) and Parliamentary
elections (November 2016). The new electoral law expressly states that persons excluded
from election through a judicial decision cannot stand in elections. ANI has the specific
responsibility to process the wealth declarations of all candidates. It plans to have meetings at
local levels with those responsible for dealing with wealth declarations, and to provide
guidance and information on recurring errors. It also intends to step up its awareness
campaigns so that all candidates are well aware of potential incompatibilities and conflicts of
interest. Candidates are also required to present a statement that they fulfil the legal
requirements for being nominated. Subsequently, there are checks and the possibility for legal
challenge for the electoral committees, for the political parties and for the citizens. The bodies
34 Technical report, section 3.4, p25. The National Integrity Agency imposed fines on members of the Legal Committee of the Chamber of
Deputies for failure to follow up on an incompatibility decision which was not challenged in the courts.
36
Technical report, section 5.4, p37. A budget of 23 million Lei (€5.1m), partially funded through EU funds, has been foreseen. COM (2015), p9.
10
responsible for electoral management at both national and local level clearly have a
responsibility to work with ANI to ensure that potential contraventions of the law are avoided
or identified as early as possible.
In the meantime, the judicial system has been working to improve the uniform interpretation
of the existing legal framework. Recognising that there were particular issues of consistency
in such cases, including inside the Court itself, the High Court of Cassation and Justice has
put specific mechanisms in place to address the issue. This has helped lower courts, and also
ANI in its own interpretation of the laws. ANI is also compiling a codex of all relevant court
decisions.
2.4 The fight against corruption
Tackling High-level corruption
The track record of the institutions involved in fighting high-level corruption remains strong,
with regular indictments and conclusion of cases concerning senior politicians and civil
servants. The National Anti-Corruption Directorate (DNA) reported an increased number of
signals from the public: this seems to reflect a public confidence in the institution which is
also reflected in opinion polls. Public support for action against corruption was recognised
to be a strong factor in the demonstrations leading to the Prime Minister's resignation in
November 2015. DNA indicted over 1250 defendants in the course of 2015, and this included
the Prime Minister, former Ministers, Members of Parliament, mayors, presidents of county
councils, judges, prosecutors and a wide variety of senior officials. It has also increased its
interim asset freezing measures relating to these cases, to reach a figure of €452 million.
A particular trend has been the identification of corruption at local level. Since 2013, the total
numbers of local officials sent to trial for corruption amount to almost 100 mayors, over 20
county council presidents and dozens of other local officials. The arrest of the Mayor of
Bucharest in 2015 was the strongest illustration of this problem.
As for the trial phase, the High Court of Cassation and Justice has maintained its track record
in terms of bringing corruption cases to conclusion. In 2015 the Penal Chamber settled, at first
instance, 11 high-level corruption cases and the panels of five judges settled, as final instance,
11 high-level corruption cases. Even in cases with a high number of witnesses and complex
evidence, the HCCJ judges have underlined their efforts to ensure respect of procedural rights
for all parties. Proceedings have also been kept relatively short: the majority of cases finalised
were registered in 2014 and 2015, while the oldest case goes back to 2011. Amongst the high
profile defendants convicted were those who had served in the positions of Ministers,
Members of Parliament, mayors, judges and prosecutors.
In 2015, Parliament has refused about one third of requests from DNA for the lifting of
immunity of Members of Parliament to allow for the opening of investigations or the
application of preventive detention measures – an issue monitored in previous CVM reports.
Whilst a majority of requests were admitted, it remains the case that Parliament's response to
DNA requests lacks objective criteria against which to give a clear and consistent motivation
in each case, in particular for refusals. There are also still no clear rules established to follow
up the CVM recommendation to ensure swift application of the Constitutional rules on
suspension of Ministers on indictment and to suspend parliamentarians subject to negative Technical report, section 3.2, p 23. DNA reports that 85 to 90 % of cases originate from citizens' complaints, 5 to 10% are ex-officio or
complaints from other institutions and less than 5% of cases originate from notification of the intelligence
services, integrity rulings or corruption convictions. The fact that, as noted in the 2015 report,
Ministers have remained in office after indictment on criminal charges, and parliamentarians
with final convictions for corruption have stayed in office, remain current. Steps that have
been taken here have been taken by some political parties rather than by Parliament.
Combating corrupt practices in the judiciary have been a priority for DNA and the judicial
authorities. The number of cases brought to light has increased in recent years and there has
been an increasing sense of the judiciary wanting to show that it has high standards of
integrity. In this respect, it is important that the judicial hierarchy is attentive to any risk of
integrity for judges and prosecutors, and that magistrates receive proper guidance with regard
to impartiality, conflicts of interest or incompatibilities.
The integrity of parliamentarians and of judges and prosecutors was the theme of the 4th
evaluation round of the Council of Europe Group of states against Corruption (GRECO). The
follow-up on the GRECO recommendations will be important to advance the above issues. Tackling Corruption at all levels
The challenge of tackling corruption in Romanian society as a whole is well-known. The
tragic fire in Bucharest in October was seen by many as revealing the consequences of local
corruption, and the evidence of the problem is widespread. Risk areas identified include
education, health and local public procurement, involving decisions with direct financial
consequences. Cases have included rigging exams, fraud against health insurance, and rigged
procurement procedures, sometimes involving large numbers of officials.
The National Anti-Corruption Strategy is the core instrument to encourage the prioritisation
of preventative action by public administration at national and local level. Concrete
prevention projects within ministries, some supported by EU funds and NGOs, continue to
bring a useful contribution to fighting corruption within the administration. However, if the
corruption prevention measures of the strategy have been put in place, their application is
more piecemeal, due to insufficient capacity of the institutions, lack of knowledge and
expertise of the staff and lack of political will from the top of the institutions. The limited
results of the strategy, in particular at local level, are attested by the considerable number of
corruption cases confirming perceptions of systemic corruption. The small number of signals
received by DNA from the former public procurement authority ANRMAP also reflected a
lack of inter-institutional cooperation. An extension of the National Anti-Corruption Strategy
for the next two years is being prepared. It will need to remedy the weaknesses found out in
the review, focusing notably on establishing effective control bodies with the necessary
human and material resources.
The overall administrative reform planned by the government will also be an opportunity to
implement effectively the measures to fight corruption across the administration.
The progress noted in the 2015 report47 in terms of the pursuit and prosecution of lower level
corruption has continued, notably in the work of the General Prosecutor and the Anticorruption
Directorate General of the Ministry of Internal Affairs. The General Prosecutor
41 COM (2013)final, p7.Technical report, section 2.4, p20. http://www.coe.int/t/dghl/monitoring/greco/default_en.asp Technical report, section 5.1, p30. http://sna.just.ro Technical report, section 5.2, p31.
47 COM (2015) 35, p11. Technical report, section 5.3, p33.
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has prioritised anti-corruption work and it will be important that resources are available to
continue this work.
Concerning asset recovery, the Romanian Government tabled a draft law in June to set up an
agency to manage seized and confiscated criminal assets. This was approved by the
Parliament and promulgated in December. This is an important step towards an answer to the
long-standing recommendation of the Commission to improve the enforcement of
confiscation orders (it appears that only around 10% of the value of confiscation orders is
actually collected, thus hindering the dissuasive effect of the sanction). Effective results from
the new agency can only be expected in the second half of 2016 at the earliest.
The Romanian authorities, with the support of the Commission, have designed a strategy to
structurally improve the public procurement system and adapt it to the new EU rules, and
have set up a new agency for ex-ante controls. The strategy includes addressing the risks of
integrity and corruption and its implementation would be a significant step towards tackling
public procurement as a major risk area for corruption.
CONCLUSION-
The Commission's 2014 and 2015 CVM reports were able to highlight a number of areas
where reform was being consolidated through a strong track record. The continuation of this
trend is in itself a sign of developing sustainability. The track record of the key judicial and
integrity institutions to address high-level corruption has remained impressive. The judicial
system as a whole has continued to show its professionalism, including a capacity to adapt to
significant changes in the civil and criminal codes, efforts to unify jurisprudence and a
willingness to defend the independence of the judiciary. Romania has made further progress
towards the CVM benchmarks.
At the same time, the fact that several recommendations of the 2015 CVM report remain valid
shows that reform does not enjoy the full consensus necessary to assure sustainable progress.
Judicial independence and respect for court decisions continue to face challenge. The
Criminal Codes reform is put into question in Parliament. Decisions in Parliament on whether
to allow the prosecution to treat parliamentarians like other citizens still lack objective
criteria. There are improved steps to tackle general corruption, but not on the scale and with
the political will required to address what is widely recognised as a systemic problem. Judicial
reform and the fight against corruption remain important issues for Romanian society, able to
inspire large-scale public demonstrations, and further support to the consolidation of reform is
needed to ensure the irreversibility of progress.
The Commission welcomes the constructive cooperation it has had with the Romanian
authorities over the past year as well as the political commitment of the government to pursue
reform and fight corruption. 2016 will be a test year in many respects. The extent to which
integrity issues prevail in the appointments to the senior positions in the judiciary and the
scrutiny of candidates for forthcoming elections will be key signs of the extent to which
reform is taking root. The continuation of the trend of reform will also be a signal of
sustainability. The Commission looks forward to continuing to work closely with Romania to
secure the CVM's objectives.
The Commission invites Romania to take action in the following areas:
49
In the context of the implementation of the new EU Directives and the fulfilment of the conditions of the
European Structural and Investment Funds. Judicial Independence
Public confidence in the judiciary is in part a reflection of its willingness to play its part as an
independent actor in the governance of Romania. Open and merit-based appointment
procedures will play a particularly important role in 2016. Steps should also be taken to
address the continued tendency for magistrates to be subject to personal criticism in the
exercise of their proper functions. Ensure that clear and robust procedures are in place in time for the appointments to senior
positions in the magistracy foreseen in 2016. This would imply that several months
before each procedure, the different steps and the criteria which will govern the decisions
will be set out. Use a different approach for appointments below the top leadership of the
prosecution services, with the newly-appointed Heads playing an important role in
selecting their own team. Ensure transparency of all procedures; Subsequently, a more robust and independent system of appointing top prosecutors
should be settled in law, with the support of the Venice Commission; As recommended in 2015, ensure that the Code of Conduct for parliamentarians includes
clear provisions so that parliamentarians and the parliamentary process respect the
independence of the judiciary;The new Superior Council of the Magistracy should determine if more could be done to
provide appropriate support to individual magistrates facing criticism undermining
judicial independence. Judicial reform
Work should continue to promote reforms which can be seen to have consolidated the
professionalism of the magistracy. This would be helped by a stable legislative framework.
Previous recommendations on rationalisation of the courts and on improving the follow-up of
court judgements remain valid. As recommended last year, the current phase in the reform of Romania's legal codes
should be concluded swiftly by an agreement in Parliament to amend the codes, passing
only those amendments which respect the opinion of the judicial institutions, as presented
by the government; The Government and the Superior Council of the Magistracy should set up a clear plan to
ensure that the new deadline for the implementation of the remaining provisions of the
Code of Civil Procedures can be respected; The incoming Superior Council of the Magistracy should put in place clear measures to
promote transparency and accountability, including by ensuring a regular programme of
open meetings with assemblies of judges and prosecutors at all levels, an ongoing
dialogue with civil society, and an annual report. Integrity
Integrity should be the guiding principle in public life and the legal framework and integrity
institutions are designed to promote this goal.
It is important to improve public acceptance
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and effective implementation of incompatibility rules and to put an emphasis on upstream
prevention of incompatibility and conflict of interest. Pursue efforts towards consistency of jurisprudence of integrity decisions and make
consolidated jurisprudence available to lower courts; As recommended before, look again at how to ensure that court decisions requiring the
suspension from office of parliamentarians are automatically applied by Parliament; Implement the ex-ante check of conflict of interests in public procurement through the
"Prevent" programme; Take steps to ensure the respect of the rules on integrity in the organisation of the local
and general elections in 2016.Fight against corruption
Maintaining the effort of the judicial institutions addressing high-level corruption remains the
most important sign of consolidating the fight against corruption. Corruption laws must apply
equally to all and be applied at all levels. Use EU funds to the full in spreading effective prevention measures against low-level
corruption through the National Anti-Corruption Strategy and through general reforms to
public administration; Ensure that the new Asset Recovery Agency is set up with strong leadership, sufficient
resources and the support of all other institutions to improve effective recovery. Other
parts of the public administration should be clearly accountable for failure to pursue these
issues;Implement the new public procurement strategy and action plan, ensuring a robust anti-corruption
framework in terms of the legal framework, institutional arrangements, and
administrative capacity, applying the measures to prevent and detect conflicts of interests,
and showing that transgressions are followed up in full. Adopt objective criteria for deciding on and motivating lifting of immunity of Members
of Parliament and ensure that immunity is not used to avoid investigation and prosecution
of corruption crimes.
Courtesy: http://ec.europa.eu/cvm/docs/com_2016_41_en.pdf
