This document is an excerpt from the EUR-Lex website
Document 52012DC0410
REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL On Progress in Romania under the Cooperation and Verification Mechanism
REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL On Progress in Romania under the Cooperation and Verification Mechanism
REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL On Progress in Romania under the Cooperation and Verification Mechanism
/* COM/2012/0410 final */
REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL On Progress in Romania under the Cooperation and Verification Mechanism /* COM/2012/0410 final */
REPORT FROM THE COMMISSION TO THE
EUROPEAN PARLIAMENT AND THE COUNCIL
On Progress in Romania under the Cooperation and Verification Mechanism
I. The Cooperation and Verification
Mechanism: Supporting Romania in Justice Reform and the Fight against Corruption
In the run-up to the accession of Romania
to the EU in 2007, it was agreed that further work was needed in key areas to
address shortcomings in judicial reform and in the fight against corruption.
This led to the establishment of a framework to support Romania and to monitor
progress in these areas, the Cooperation and Verification Mechanism (CVM).[1] Benchmarks were established in
four areas: Judicial reform, integrity, the fight against high-level
corruption, and the prevention and fight against corruption in the public
sector. The Decision included regular reporting from the Commission, and
provided that the mechanism will continue until the objectives of the CVM are
met and all four benchmarks are satisfactorily fulfilled[2]. Five years after accession is an
appropriate time to assess whether the objectives of the CVM have been
fulfilled. The technical report accompanying this assessment summarises the key
developments of the past five years. This report takes stock of what has been
achieved so far and what remains to be accomplished. It covers both the
legislation and tools which are in place, the elements of the legal framework
which still need to be completed, implementation and also whether ownership is
sufficiently embedded to maintain the direction of reform. In so doing, the
Commission takes into account the sustainability and irreversibility of the
reform process as the determining elements of its assessment. During these five years there have been
periods of progress and setbacks, times when co-operation has worked well and
times when the mechanism has been resented and resisted. So this report recognises
the overall progress made since accession. Nevertheless, this report is adopted at a
time when important questions are raised with regard to respect for rule of law
and the independence of the judiciary in Romania. Overall progress has to be
assessed in the context of a wider social recognition of key principles such as
the rule of law, and the independence of the judicial process as part of the
checks and balances of a well-functioning democracy. A well functioning,
independent judicial system, and respect for democratic institutions are
indispensible for mutual trust within the European Union, and for gaining the
confidence of citizens and investors. The Commission considers that recent steps
by the Romanian Government raise serious concerns about the respect of these
fundamental principles. These steps took place in an overly polarised political
system where mistrust between political entities and accusations are a common
pattern; however this political context cannot explain the systematic nature of
several actions. While certain actions may be partly explained by this
political polarisation, they raised serious doubts about the commitment to the
respect of the rule of law or the understanding of the meaning of the rule of
law in a pluralist democratic system. Political challenges to judicial
decisions, the undermining of the constitutional court, the overturning of
established procedures and the removal of key checks and balances have called
into question the Government's commitment to respect the rule of law and
independent judicial review. The Commission is in particular extremely
concerned by the indications of manipulations and pressure which affect
institutions, members of the judiciary, and eventually have a serious impact on
society as a whole. Whilst this report looks at the last five years as a whole,
the current controversies pose a serious threat to the progress achieved so far
and raise serious questions as to the future of the reforms already launched.
This report therefore includes specific recommendations to address the current
situation and to help restore respect for principles which are cornerstones of
European democracy. Today's European Union is highly
interdependent. The rule of law is one of the fundamental values of the EU and
there is a strong common interest in it which mirrors the interest of Romanian
public opinion in these issues.[3]
Eurobarometer polling has shown that 93% of Romanians consider corruption to be
an important issue for their country, and 91% have the same response over
shortcomings in the judicial system. The same poll also concluded that 76% of
Romanians supported the EU helping to tackle these issues.[4] The CVM does not ask Romania to achieve
higher standards than exist in other Member States. Its target is to help
Romania achieve standards comparable to other Member States, an objective
supported by 72% of Romanians.[5]
For the purpose of situating within this context what has been achieved by
Romania since accession, the situation in other Member States is an important
factor. The Commission uses in this report points of reference and comparative
indicators where they are available.[6]
To compare progress in Romania with the situation in other Member States, the
Commission also drew upon senior experts from key professions dealing with
these issues.[7] Since 2007, the EU budget supported the
fight against corruption and judicial reform in Romania through the Structural
Funds with over €12m. This includes projects in the areas of education, health,
regional affairs, in the judicial sector and with the National Integrity
Agency. Additional support was provided by pre-accession funds. At the same
time, Member States have supported Romania with bilateral projects in all areas
of judicial reform and the fight against corruption.[8] II. Analysis of progress under the CVM 2007-2012
The Commission's overall assessment of
progress since Romania's accession shows that many of the building blocks required
are now in place, even though recent events have called into question the
irreversibility of the reform process. The CVM has made a major contribution to
a transformative process in Romania. The focus has therefore shifted to
ensuring that their implementation delivers the results required, and that the
ownership exists to maintain the momentum of reform, including in challenging
political circumstances. Since 2007, Romania has created or has
under way the basic legal framework in all areas covered by the CVM. When
completed, the introduction of the new codes should represent a substantial
modernisation of the legal system. Other political decisions have also provided
a solid framework, such as the national anti-corruption strategy. Many
important institutions also contribute to this solid basis, including The
National Anti-Corruption Directorate (DNA) and the National Integrity Agency
(ANI). This framework has been carried forward in
many ways. For example, the track record of DNA and ANI, the steps taken by the
High Court to tackle key high-level corruption cases, and some examples of
government bodies addressing corruption in their ranks are steps in the right
direction. It is welcome that the judicial leadership has shown its commitment
to independence in the face of recent events. However, the implementation of
this framework of rules by the judiciary and administration in general has not
yet met the objectives of the CVM. In some cases, implementation has just
started, as the reforms have been introduced recently. In other cases,
implementation has met difficulties, often linked with ownership of the reforms
by the authorities. Not all agencies of government can be considered today to
be working together to the same ends.[9]
There are still obstacles to making progress on the fight against corruption,
conflict of interest and public procurement. The leadership shown in addressing
high-level corruption trials at the High Court has yet to be reflected in
courts at other levels. It is also the case that in some important
areas, changes have come about primarily as the result of external pressure.
The CVM itself has been central to this process – and is recognised as such by
Romanian public opinion.[10]
It has helped to maintain the direction of reform at moments of pressure and to
encourage changes which require the courage to challenge vested interests. The
need for external pressure raises questions about the sustainability and
irreversibility of reform, questions accentuated by current events. The process of change mapped by the CVM
reports has not been an even trend. Different governments and Parliaments have
given different emphasis to these issues. The issues concerned are important
political issues and a degree of debate and difference is a normal part of the
political process. Some institutions have become quickly operational; others
have taken time to build momentum. The process whereby attitudes have evolved
in both the administration and the judiciary is irregular as well as gradual. Ownership and implementation are therefore
the key elements in the fulfilment of the CVM benchmarks. They determine the
sustainability and irreversibility of reform. They are demonstrated through the
actions, results and decisions taken by those with the authority to influence
the direction and speed of change. The forthcoming appointments of a new
General Prosecutor and Chief Prosecutor of the DNA will thus be key indicators
of the sustainability of reform. The Commission also urges the government to
take the steps needed to remedy the damage done to reform in recent weeks. II.1 Judicial Reform
2007-2012 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 Recent events concerning the
independence of the judiciary and the rule of law Judicial independence remains an important
issue for Romania. Since accession, the judiciary has been able to affirm its
independence gradually, in particular through the successful investigation,
prosecution and trial of an increasing number of high-level corruption cases.
This has lead to significant achievements at the level of prosecution and,
since 2010, also at the level of courts as described under chapter II.2 in this
report. A final conviction in an emblematic high-level corruption cases in June
and the actions of the High Court of Cassation and Justice, the Superior
Council of the Magistracy[11]
and of the Constitutional Court in resisting political challenges to judicial
independence and in affirming professional integrity in the aftermath of this
verdict has marked a step change in this sense. However,
the Commission is concerned by the recent pressure exercised by members of the Romanian Government and senior politicians on the Constitutional Court: these are unacceptable
interventions against an independent judicial institution. The Government and
all political levels must respect the separation of powers. They must also strictly respect the independence of the judiciary. In particular, the Commission is concerned
by the recent limitation of competences of the Constitutional Court in regard
to parliamentary decisions. The Romanian authorities
must urgently restore these competences in accordance with the Romanian
Constitution. The Commission has been informed by letter of 16 July from the
Prime Minister of Romania that this requirement will be met. Judicial independence and the separation of
powers are fundamental building blocks of a democratic society. In the coming
months all political levels in Romania will need to demonstrate through their
actions their commitment to these principles in order to restore confidence.
The Commission will closely monitor developments in this area. Main developments 2007-2012 The legislative framework for the judicial
system has been reformed with a view to updating its judicial system and to
target it on today's priorities. When all the new codes are brought into force,
Romania will have overhauled its criminal and civil legislation. In the
interim, the Small Reform Law was an example of practical, pragmatic
legislation addressing real shortcomings. Other laws have put in place
important steps to secure higher accountability and integrity for the
judiciary. The judiciary has evolved since 2007. There
are many signs that judges and prosecutors have gained more professional
confidence. For the most part, professionals subscribe to the concept of
judicial reform and recognise its benefits. The engagement for reform of
individual magistrates, professional associations and civil society has
increased considerably during recent years. There are concrete examples of good
professional practice which deserve to be taken up as best practice elsewhere. Pulling together these steps to draw the
full benefits will require stronger efforts by the judiciary, the executive and
the political class alike. The key progress has been legislative so far, and
with major pieces of legislation only recently adopted or not yet in force, and
others still pending in Parliament, a determined strategy will be needed for
the reforms to meet their potential to drive change on the ground. Inconsistent
jurisprudence, difficulties with enforcement and inefficient judicial processes
remain a widespread problem.[12]
The response of the judiciary to challenges to integrity and accountability has
not been sufficient to rebuild public confidence. The tools now exist for the judicial
leadership and the executive to consolidate reform. For this to be achieved, a
more consistent effort and better managerial focus within the SCM will be
required, as well as a new level of cooperation between the executive and the
judiciary, with the support of Parliament and of civil society. Government and
politicians must set a clear example: any pressure exerted on courts creates
distrust between branches of government. If the SCM can offer leadership in the
cause of reform, and receive the support of the executive to implement change,
direct benefits in areas such as the organisation of courts and the
distribution of workload could be felt relatively quickly. The results of two
ongoing World Bank projects will provide important instruments and policy
recommendations for the next steps.[13] The legislative framework Since accession, Romania has pursued an
ambitious legislative agenda. This has included new Civil and Criminal Codes
and the accompanying procedural codes, with the explicit aim of modernising the
judicial process. International experience was drawn upon in support of these
efforts. The adoption of the codes in 2009 and 2010 represented a major result
on the part of the Government, the Parliament and the judiciary, even if the
implementation process has been lengthy. So far, only the new Civil Code has
entered into force. The new Civil Procedure Code will enter into force this
autumn and the new Criminal and Criminal Procedure Codes are currently foreseen
for entry into force next year. Though there have been concerns about whether the
systems are in place to effectively implement the changes, and measures to
prepare for implementation will need to be intensified, these Codes represent a
major attempt at modernisation and if properly implemented, could bring
considerable benefits for the efficiency, transparency and consistency of the
judicial process. In parallel, Parliament has also passed a
number of other important legislative measures. The "Small Reform
Law" which entered into force in 2010 brought concrete improvements to the
consistency and efficiency of the judicial process. Legislation was also
amended to strengthen the accountability of the judiciary and to reform
appointments to the High Court of Cassation and Justice. Such measures provide
the opportunity to address public concerns about the objectivity of judicial
appointments and the disciplinary process in the judiciary: it will take a
sequence of good examples to turn around the negative legacy of the past. Consistency of the Judicial Process The High Court of Cassation and Justice has
the primary responsibility for the unification of jurisprudence. A number of
important steps have been taken since 2007. The Small Reform Law amended the
appeal in the interest of the law procedure, with a view to strengthening its
efficiency. The new procedure codes introduce a preliminary ruling mechanism as
a new instrument for legal unification, as well as reforming jurisdictional
arrangements to help unification.[14]
The High Court has also taken the initiative to hold structured discussions on
issues of jurisprudence with appeal courts and developed sentencing guidelines
for certain corruption offences. Failure to respect the High Court’s rulings in
appeals in the interest of the law, as well decisions of the Constitutional
Court, has now become a potential grounds for disciplinary measures.[15] However, these mechanisms have not yet been
able to overcome inconsistency which is a major frailty of the Romanian
judicial system.[16]
Part of the problem seems to lie in insufficient awareness of the importance of
legal unification among the magistracy, perhaps linked to an extreme
interpretation of independence. The principle of "same penalty for same
offence", and its role in dissuading crime, does not seem to be fully
appreciated. Nor does its relevance to the accountability and integrity of
magistrates. This may help to explain why analysis shows that measures for
legal unification are not well used by judges.[17]
At the same time, consistency of jurisprudence has not yet been made a priority
by the SCM and by court presidents. Even where judges want to improve
consistency, they lack the tools needed to access jurisprudence of other
courts. A full electronic publication of court decisions, including decisions
of the High Court of Cassation and Justice, is not yet in place. Appeal courts
publish some decisions, but do not apply uniform criteria for this purpose. The
main judicial database (ECRIS) is limited to accessing court rulings of the
same appeal court circumscription; judges cannot compare court rulings
nationwide.[18]
An alternative system, Jurindex, is not being updated. Experts recommend a stronger emphasis on
lodging appeals in the interest of the law and to encourage consistent practice
by judges through a full publication of motivated court decisions, regular case
discussions in all courts and an active promotion of legal consistency by court
presidents and the SCM. The judicial leadership could also put a higher premium
on legal consistency in judicial promotions and appointments, give the Judicial
Inspection a role in the analysis of inconsistent jurisprudence, extend
sentencing guidelines and use the National Institute of the Magistracy to make
consistency a major theme of initial and continuous training. Further reform of the High Court of
Cassation and Justice could also help consistency. Important progress has been
made in this regard through the Small Reform Law and through the new Procedure
Codes. The reforms brought by the new Procedure Codes must be introduced in a
way which ensures that the High Court is not inundated with abusive
applications and that only those cases raising important legal questions are
admitted. This requires an appropriate filter for second appeals and
preliminary ruling requests. There may also be other tasks which could be
transferred to other courts from the High Court, such as the competence to try
cases in first instance and to rule on a number of internal judicial issues.[19] This would allow the High
Court to concentrate on its prime role of legal unification, as is the case in
most EU Member States. The High Court also needs to have the premises and
staffing necessary for its tasks.[20]
The organisation and efficiency of the
judicial system Public administration in Romania has been
measured by the World Bank and was found to be the least effective in the EU.[21] The judicial system suffers
from some of the same weaknesses. Despite some improvements, the overall
picture is of a lack of dynamism in addressing problems which have a real
impact on the ability of the judicial system to dispense justice, and to do so
in a swift and consistent way. These problems include capacity constraints and
workload pressures upon judges and prosecutors, which result in a large measure
from imbalances in resourcing and acute variations in workload between
geographic locations and jurisdictional levels. Other problems have included a
high number of vacancies, the provision of training at entry to the profession,
and shortcomings in the structure and internal organisation of courts and
prosecutors' offices. Efforts have been made to address these
issues. These have included periodic recruitment competitions, the streamlining
of some procedures,[22]
and decisions to strengthen the initial training capacity at the National
Institute of the Magistracy. In 2011, a small step was taken towards
rationalisation by closing nine redundant courts and three courts with minimum
activity, as well as their associated prosecutors’ offices. However, the impact of these measures
remains limited. Key efficiency indicators such as workload disparity and
vacancy rates have not improved since 2007.[23]
Resource pressures and a conflict between the executive and the judiciary in
2009 slowed down reforms and led to a large number of retirements at a time
when caseload was rising steadily. The judicial system does not possess and
has not developed effective performance indicators to inform total resource
needs and resource allocations within the judicial system. Romania has recently
recognised these weaknesses and they will now be addressed by a project funded
by the World Bank which will prepare and pilot revised case and workload
indicators by early 2013. Cooperation on human resource policy for
the judiciary between the SCM, the executive and the leadership of the
prosecution has seen continuous difficulties.[24]
Legislation is still pending to introduce the function of court managers and
redefine the role of court clerks, a measure with considerable potential to
reduce the workload of magistrates. Improvements to the capacity of the
National Institute of the Magistracy and the introduction of equal recruitment
standards for different categories of candidates have only recently been made,
too late to properly prepare for the implementation of the new codes. So far, a
joint implementation plan for the new codes has not been agreed.[25] Pressures on public finances might have
been expected to drive efficiency gains. But this effect is yet to be seen.
Reasons for this include a lack of direction on managing the judiciary in the
SCM and disagreement between the judiciary and government. The SCM has not been
able to put together a human resources strategy to change structures and
systems, focusing instead on requesting more staff and resources. Parliament
has also contributed to this inertia, watering down proposals to restructure
the court system.[26]
New legislation has been criticised for failing to take into account the risk
of provoking a spate of new cases before the courts. Judicial practice Judicial practice still shows significant
weaknesses, illustrated in the assessment of judicial practice by courts in
cases of high-level corruption. Some of these weaknesses are structural: the
Romanian legal system has features which make it vulnerable to abuse, such as
the fact that prescription periods are not ended or suspended at the moment of
an indictment. This is often exacerbated by a lax handling of court process
which appears overbalanced in favour of defendants.[27] Experts have identified these
weaknesses in the handling of trials as particularly significant in comparison
to practice in other Member States. The judiciary has also found it difficult
to bring complex financial cases to successful conclusion in court. This
relates in particular to cases involving public procurement - public procurement
cases are an exception to the general positive trend regarding high-level
corruption cases in court (see below). Such cases require particular skills in
prosecutors and judges, fostered through training, specialisation and external
expertise. In addition, although foreseen by the law, the budget for court
experts is in practice rarely available, so that defendants often pay for
expertise called for by court, in addition to their paying for their own
expertise.[28]
This raises issues about the independence and impartiality of the supposedly
independent court-appointed experts. An example of how proactive leadership can
make a difference has been seen in the change in approach of the High Court of
Cassation and Justice since the appointment of new management in 2010.[29] It can now offer best practice
to other courts in areas such as case management, taking into account the risk
of reaching prescription periods, and sending a message that the court will
resist spurious attempts to delay proceedings. Maintaining and extending these
achievements will be important for progress in judicial reform overall. Accountability At the end of 2011, Romania strengthened
the legal basis for judicial accountability. Parliament passed amendments
introducing new disciplinary offences and strengthening existing sanctions;
they extended the role of the Minister of Justice and of the General Prosecutor
in the course of disciplinary proceedings and increased the independence of the
Judicial Inspection.[30]
The judicial inspectorate now has the opportunity to refocus on more targeted,
swift and pro-active disciplinary investigations, and to develop a stronger
advisory capacity within the inspectorate for shortcomings of judicial
organisation, procedures and practice. The SCM should further utilise this
potential by asking the inspectorate to undertake systematic monitoring of key
aspects of judicial practice, legal unification, and the adoption by court
presidents of best practice in management.[31]
It will also be important to use the new rights in full respect for the
independence of magistrates, to dispel the judiciary's concerns that the new
law could be abused. The most important impact of the law will
come if it is seen to be used to provide clear, consistent and dissuasive
sanctions. The reputation of the judiciary, and of the SCM's ability to police
it, has been damaged by a series of cases of wrongdoing where the response of
the judicial leadership has seemed weak and timid.[32] In many Member States, there
would be an expectation that those in positions of public authority accept that
they must withdraw from their duties if needed, to protect the reputation of
the public body concerned. The fact that judges under severe public criticism
have continued to sit in court while investigations proceed has damaged the
reputation of the courts. Clear rules should be established, such as the
immediate suspension of magistrates under investigation for serious crimes such
as high-level corruption, in order to protect both the individual magistrate
and the judiciary as a whole.[33]
This could be included in the integrity strategy of the SCM. Romania also improved the appointment
procedures to the High Court of Cassation and Justice at the end of 2011 by
adopting more transparent and objective procedures which allow for a more
comprehensive and objective independent assessment of the merit of candidates.
This represents an important step in improving the accountability of the High
Court of Cassation and Justice. II.2 Fight against
Corruption 2007-2012 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 Fighting corruption and promoting integrity
is a challenging task which needs the engagement of all powers of the state,
and needs to be driven top down, so that it percolates through society as a
whole. A key starting point is the ability of the Romanian judicial system and
of the Romanian administration to apply the rule of law. Since accession,
Romania has made important progress in the prosecution and trial of high-level
corruption cases. The National Anti Corruption Directorate (DNA) has proved an
energetic and impartial prosecutor of these cases. Romania has also been able
to establish a system to detect and sanction conflict of interest,
incompatibilities and unjustified assets. The National Integrity Agency (ANI)
is an institution prepared to pursue its mandate with conviction. Recent action
to accelerate high-level corruption trials in the High Court has started to
redress one of the major problems limiting dissuasive action against
corruption. Stronger legislation to promote integrity within the judiciary
itself, and a law introducing extended confiscation of criminal assets, has
been adopted. The new national anti-corruption strategy offers an important
focus to drive anti-corruption work towards best practice: it now needs to be
implemented as designed and given sufficient time to prove its effectiveness.
These are significant steps towards meeting the objectives of the CVM. However,
in the light of current events, preserving the progress made, maintaining their
momentum and ensuring institutional stability are the first building blocks in
demonstrating sustainability. These steps have come in a climate where
the vast majority of Romanians see corruption as a major problem.[34] They have not yet convinced
Romanians that the situation is improving; with most considering that the
situation has deteriorated.[35]
Public concerns will only be dispelled when objective and final sentences are
reached in the most important high-level corruption trials and when best
practice in the conduct of trials is seen to be the norm. Too few cases of
conflict of interest are pursued, in particular in public procurement, and even
when pursued in court, sanctions in this area are in law not dissuasive. A
convincing track record of confiscated unjustified assets has not yet been
achieved. Turning the new national anti-corruption strategy into a tool to
mainstream anti-corruption work across all institutions will be an important
test of implementation. In addition, in spite of their significant
achievements, the authority of these anti-corruption institutions has been put
in question. The legal basis for the work of the National Anti-Corruption
Directorate (DNA), the prosecution and the National Integrity Agency (ANI) has
been challenged repeatedly since 2007; some of these challenges are still
pending. The forthcoming appointments to the posts of General Prosecutor, Chief
Prosecutor of DNA and for other senior appointments within the prosecution are
an opportunity to show that the political and judicial leadership is fully supportive
of a strong and independent pursuit of corruption. This calls for a transparent
and objective appointment process within the existing legal framework, through
an open competition using clear criteria, targeting the strongest possible
leadership and with the goal of continuity in the functioning of these
institutions. The efficient conduct of a number of high-level corruption cases
which have reached final stage in court will test the Romanian judiciary's
ability to continue to affirm its independence and apply the rule of law. High-Level Corruption The performance of the National
Anti-Corruption Directorate (DNA) in the investigation and prosecution of
high-level corruption cases can be considered one of the most significant
advances made in Romania since accession. DNA has been able to deliver a
constantly increasing number of indictments year by year, with investigations
carried out swiftly and in a pro-active way. Since 2007, cases at the highest
levels of political life and within the judiciary have been raised by DNA
against people from all major political parties.[36] The performance of DNA has led to a
consequential increase in court decisions and convictions in high-level
corruption cases, in particular since 2010.[37]
However, the efficiency of court proceedings and the consistency and
dissuasiveness of court judgments in cases of high-level corruption have not
matched the progress in the prosecution. Since 2007, high-level corruption
cases have suffered significant delays in court. Causes have included
weaknesses in legislation and shortfalls in capacity. Shortcomings in judicial
practice detailed in the previous section of this report have been particularly
evident in high-level corruption cases, with excessive room given by judges to
defendants' attempts to protract and frustrate court proceedings – including
when cases are nearing prescription periods.[38] Some causes of delay have been removed: the
Small Reform Law and amendments to the Law on the Constitutional Court
introduced important changes to accelerate trials by removing the suspensive
effects of exceptions of unconstitutionality and illegality raised by
defendants. An interpretative ruling of the High Court has also "stopped
the clock" for periods during which a trial was previously suspended
pending a ruling on an exception of unconstitutionality.[39] Nevertheless, a number of high-level
corruption cases were lost or partially lost to prescription in early 2011.[40] In mid-2011, it became clear
that a number of important high-level corruption cases – cases which had been
delayed for years for various reasons – looked likely to reach their
prescription periods. In line with the Commission's recommendations,[41] the new leadership of the High
Court of Cassation and Justice promoted best practice through a more efficient
and rigorous management of trials. These measures led to a number of first
instance decisions in important cases from late 2011, as well as the first
final corruption convictions with imprisonment pronounced against a former
Prime Minister, a former Minister and against a current Member of Parliament.[42] A further concern in Commission reports has
been the consistency and dissuasiveness of sentences in high-level corruption
cases.[43]
A joint study of the judiciary and the Ministry of Justice recognised this
issue in 2009 and developed corrective action which led to certain
improvements. In the absence of action by the judicial leadership, a group of
judges from the Bucharest Court of Appeal drafted sentencing guidelines to
improve consistency for corruption offences in 2010. These guidelines later
inspired the High Court of Cassation and Justice's new management to draft and
adopt its own sentencing guidelines for certain corruption offences in 2011. These examples show that the Romanian judiciary
can react to objective shortcomings in a pragmatic way. The sentencing
guidelines have created a basis, if applied and expanded to cover other
offences, for more consistency and predictability in sentencing of high-level
corruption cases. The measures taken by the High Court regarding case
management and judicial practice represent an important recognition that the
courts have a responsibility to see that justice is served, and can lead, if
they are sustained, to a series of final decisions in cases involving senior
politicians in the course of this year. The first of these decisions was
reached last month, with the final decision of a trial involving a former Prime
Minister providing a demonstration that the High Court is beginning to deliver
decisions even against the highest ranking and politically influential defendants. However, these cases of best practice have
not been actively mainstreamed and there is little evidence that they are being
adopted in other courts. Despite the visible improvements at the High Court, at
other courts many other high-level corruption cases involving local dignitaries
such as prefects, presidents of county councils or mayors continue to
experience questionable delays and interruptions. It is important to note that cases
involving corruption and fraud in public procurement see particularly slow
progress in court. An effort will be required to assess the reasons for these
significant delays and to improve the availability of expertise and specific
knowledge to judges.[44]
Most sentences in high-level corruption cases are still suspended. Very few
final sentences of imprisonment have so far been pronounced in important cases
involving senior politicians[45].
This has negative implications for the dissuasiveness of the system. An effective fight against high-level
corruption requires respect for judicial action and the full support by the
political class to investigations by the judiciary. The adoption of an ethical
code in 2011 by the then governing party can be considered a significant step.
As a result of this code, the same party excluded an influential mayor when
indicted for high-level corruption.[46]
By virtue of the Romanian Constitution, as
interpreted through the jurisprudence of the Constitutional Court,
Parliamentary approval is required to authorise the arrest or search of
parliamentarians, and is also required to approve the opening of criminal
investigations against parliamentarians who are current or former Ministers.
Refusal of the Parliament to allow the opening of criminal investigations in
such cases generates a de facto immunity from criminal investigation and in
turn blocks the course of justice. Since 2007 a number of MPs, including a
former Prime Minister, have been shielded from criminal investigation by the Parliament’s
refusals to allow the opening of criminal investigations.[47] The fact that Parliament does
not motivate refusals to allow the opening of criminal investigations makes it
difficult to establish the objectivity of decisions.[48] In addition, the fact that
parliamentarians can still sit whilst also convicted of serious offences like
corruption damages the reputation of Parliament – many parliamentary systems
have the practice of suspending parliamentarians at indictment in such cases,
and exclusion on conviction.[49]
In the recent establishment of the new
government there were contradictory signals. The nomination and indeed
appointment of Ministers with final or pending court rulings against them led
to understandable controversy and indicated an unwillingness to accept and to
understand that the rule of law is a fundamental principle.[50] This shows that there is still
some way to go in terms of setting high standards in high office. Integrity On accession, Romania agreed to put in
place a legal and institutional framework to prevent and sanction corruption by
addressing incompatibilities, conflict of interest and unjustified wealth. The
National Integrity Agency (ANI) verifies situations of conflict of interest and
incompatibility and identifies potential unjustified wealth among public
officials and elected politicians. Its findings or referrals can be appealed to
or confirmed by the Courts, or followed up by other judicial or administrative
bodies. Set up in 2007, ANI swiftly became
operational and put in place an efficient administration and investigation
methodology. It established centralised, electronic public access to all
declarations of assets and interests, an important contribution to
transparency. With support from both the national budget and EU funds, it set
up a computerised case management system and cooperation agreements with a
variety of administrative and judicial authorities. Today, ANI has evolved into
an essential component of the anti-corruption institutional framework and can
demonstrate significant results.[51]
However, ANI's progress has been held up by
a series of challenges. ANI's legal base was declared unconstitutional in 2010,
putting in doubt ANI's core power to seek the confiscation of unjustified
assets.[52]
The debate on how to amend ANI's legal basis revealed that the political will
to effectively tackle integrity and to fulfil accession commitments was
shallow. Representatives from all major political parties in Parliament
re-opened the issue of ANI's existence. Parliament has also failed to implement
decisions on incompatibility and conflict of interest.[53] ANI's weakened legal base makes it more
difficult for ANI's work to bring results and is still the subject of
constitutional challenge, although two complaints were rejected by the
Constitutional Court in June.[54]
The new wealth investigation commissions – established as an extra stage
between ANI and courts for cases where ANI suggests the confiscation of
unjustified assets – seem to have made the task of pursuing unjustified wealth
more difficult. The commissions add an extra layer of jurisdiction but offer
less transparency and fewer rights for the parties. Despite efforts to bring
the key players together in seminars, their procedures have not been fully
unified and weaknesses have appeared concerning the handling of evidence. So
far not a single case processed by the wealth investigation commissions since
their re-establishment in 2010 has been finally determined by court. The legal
framework also hampers the work to address administrative conflicts of
interest. Separate legal processes are required first to determine any appeals
lodged to ANI’s finding of conflict of interest, and subsequently to cancel
legal acts such as public procurement contracts concluded in a situation of
conflict of interest.[55] The effectiveness of the Romanian integrity
system also suffers from slow court proceedings, inconsistent jurisprudence and
an insufficient cooperation between other administrative authorities, the
judiciary and ANI. Judicial procedures for cases under all three attributions
of ANI have been particularly slow. Altogether, courts have so far finally
confirmed only four cases of unjustified wealth, and all these cases pre-date
the new law (one dates from 2005). Simple cases of incompatibility can take
several years to be finally determined by courts. This has led to cases where
sanctions could not be applied, as mandates had already expired. Inconsistent
jurisprudence has also been a problem in cases raised by ANI, but prompt
corrective action has not yet been taken by the judiciary.[56] Although ANI has established
cooperation agreements with a number of other administrative institutions and
with the prosecution, this cooperation has not led to significant results so
far, with the exception of a productive co-operation with DNA. Very few signals
have reached ANI from other institutions and follow-up to ANI's referrals by
other institutions has been lacking, leading to only one indictment and one
additional tax demand.[57] Nevertheless, ANI has proved increasingly
able to focus on important and complex cases since 2010. A screening exercise
to identify conflict of interest among local councillors has led to a
significant number of potential cases – the extent to which these cases will be
followed up by the prosecution and the courts will be an important test.[58] A similar exercise has been
launched with authorities managing EU funds. These are welcome developments.
The investigations of ANI should in future be even more guided by risk
assessments and by focusing on vulnerable areas. This may have implications in
terms of increasing the staffing resources of ANI.[59] Despite the weaknesses in judicial
follow-up, a significant number of incompatibility findings have become
definitive and led to resignations and disciplinary sanctions.[60] Results are more disappointing
regarding the follow up to ANI’s cases concerning the confiscation of
unjustified assets and conflict of interest. Improvements to ANI's legal basis
may help to address this issue,[61]
but the political, judicial and administrative system as a whole needs to see
ANI as an asset to be encouraged. The handling of ANI cases by the courts and
the cooperation between institutions needs to improve if the Agency is to serve
its purpose as driving a major shift in attitudes towards integrity in Romania.
Prevention
and sanctioning of general corruption in the public sector As well as ensuring that corruption is
sanctioned when identified, a sustainable decrease in corruption requires
action to make corruption less likely in the first place. Preventive measures
to reduce opportunities and risks for corruption, such as transparent
procedures and predictable decision-making by public institutions, are a key
step. The overall direction of action is framed
by a national anti-corruption strategy. The last five years present a mixed
picture in this regard. The 2008-10 Strategy failed to deliver the impact
sought. However, a comprehensive new strategy was adopted in March this year,
and the decision of the new Government to re-endorse the strategy unchanged,
accompanied by the endorsement of the Parliament, suggests general political
backing. The new strategy has taken up many recommendations from an impact
analysis of the previous two strategies and provides a good basis to coordinate
and focus the activities of different state institutions. It also allows for a
monitoring of progress following a series of indicators. Adoption by Parliament
was a useful way to underline that all influential
parts of society have a part to play in making the strategy a success. Follow-up is heavily dependent on the
actions of each part of government. As a dedicated and well-staffed
anti-corruption body with both a preventive and an investigative role, the
General Anti-Corruption Directorate of the Ministry of Administration and
Interior (GAD) has made important progress in tackling corruption within the
Romanian police and the Ministry’s other structures. GAD is so far the only
department with a detailed corruption risk assessment and has also forwarded a
significant number of corruption signals to the prosecution.[62] To
build upon these achievements and fulfil its potential, GAD should now expand
their track record of cases in further areas of serious and complex corruption,
including public procurement and investigations into corrupt links between
police and organised crime. Comparable results have not been reached in
other sectors of government activity. Cases of corruption are numerous in areas
like tax administration, education, health and infrastructure investment;
however risk analysis in these sectors has only recently started and only a few
measures have been taken in areas that are the most corruption-prone and
budget-sensitive.[63]
The educational sector has piloted some useful prevention measures, including
proposals of the National Integrity Centre, such as video surveillance at
baccalaureate exams and is drafting a sector strategy in the context of an
EU-funded anti-corruption project. Other key risk areas to cover are school infrastructure
investments and corruption in the examination system in schools and degree
awarding within universities. Activities in the health sector are now
beginning, with the launch of another important EU-funded project.[64] These have been some useful
pilot activities in corruption-sensitive areas with an important impact on the
state budget, but have yet to be carried through into a systematic approach.
Few activities have taken place in areas such as tax and customs, although
particular risks in these areas would justify creating strong preventive units
with a pro-active mandate.[65].
Administrative control authorities have an important role, but do not yet
generally perform corruption risk assessments to address vulnerable areas and
generally do not cooperate with judicial authorities or with ANI. Experts
suggest insufficient independence and political influence as important
underlying reasons for inaction.[66]
The low number of corruption signals by
administrative authorities has also had an impact on the number of cases coming
to the prosecution and the courts. An exception is the area of police, where
GAD has referred a considerable number of cases. The General Prosecutor has
asked local prosecution offices to develop local anti-corruption strategies,
issued guidelines for the investigation of corruption cases and created a
network of specialised prosecutors. These measures have improved the number of
corruption cases pursued by the regular prosecution.[67] The new national anti-corruption strategy
offers an opportunity to make a step change in the commitment of all government
agencies to implement pro-active policies to make corruption more difficult,
and to identify problems when they arise. The best practice available in cases
like the Ministry of Administration and Interior could be extended to all
sectors with high risk and important budgetary impact. The establishment of an
independent telephone hotline to signal corruption offences across public
service would also help to stimulate signals. But above all, anti-corruption
actions must win trust of the public, and that will require a virtuous circle
where the public can see that consequences follow when justified cases are
raised. Ombudsman The Ombudsman plays an important role in
the fight against corruption in Romania. The Ombudsman is empowered to conduct
investigations concerning alleged illegal acts of the administration. It is an
independent body, which can act on the basis of an appeal by any person or on
its own initiative. The Ombudsman is also entitled under Article 26(2) of Law
35/1997 to report to the parliament or to the prime-minister on "grave
cases of corruption" he finds in the course of his investigations. The
role of the Ombudsman is relevant to the CVM in particular to the fourth
benchmark on preventing and fighting against corruption. The Ombudsman is also
the only institution that can directly challenge Government Ordinances
in front of the Constitutional Court. The Commission notes that on 3 July 2012
the Parliament prematurely terminated the mandate of the Ombudsman. The
Romanian authorities need to ensure the independence of the Ombudsman, and to
appoint an Ombudsman enjoying cross-party support, who will be able to
effectively exercise its legal functions in full independence. Recovering the proceeds of crime Experience shows that pursuing corruption
often comes down to pursuing the proceeds of corruption. So recovering the
proceeds of crime and tackling money laundering are essential parts of any
anti-corruption strategy. In 2011, Romania has established an asset recovery
office[68]
and 2012 saw a new law on extended confiscation. Since 2010 prosecution and
police apply a standardised procedure to recover the proceeds of crime acting
under a common order by the General Prosecutor and the Minister of the
Interior. Training in this area has been made compulsory and a network of
specialised prosecutors has been created. However, this action is yet to bear fruit. Extended confiscation
remains a new concept for police, prosecutors and judges. Concepts such as
third-party confiscation seem to be readily challenged in court.[69] Despite positive
jurisprudence, money laundering is still not prosecuted as a stand-alone
offence.[70]
Expert assessment suggests that the level of confiscations is unexpectedly low.[71] In addition, the lack of
comprehensive statistical information in this area makes it difficult for the
authorities to monitor progress. Public procurement Weaknesses in the implementation of public procurement legislation
are an important source of corruption and misuse of public funds. They also
affect the effective use of EU funds and lower quality in the delivery of
public goods. Audits and assessments by various Commission services have
repeatedly identified systemic risks and shortcomings in this area, sometimes
resulting in interruptions in payments of EU funds. This is backed up by
complaints received directly by the Commission. Since accession, Romania has created an extensive institutional and
legal framework to implement EU legislation in this area. However, a number of
systematic shortcomings have not been sufficiently addressed. Inconsistencies
are caused by factors including frequent changes of the legal framework[72] and an institutional set-up
that lacks sufficient capacity, as well as the absence of key instruments for
effective controls such as a comprehensive register of public tenders. The
protection of public procurement against conflict of interest has been
identified as a particular weakness by Commission audits and by the Romanian National
Integrity Agency.[73]
Romania has committed to implement through an overall action plan the findings
of a comprehensive assessment of public procurement carried out by the
Commission in 2011. Decisive action will be needed to remedy the shortcomings
identified. III. Next Steps The Commission's assessment shows the
progress that Romania has made in the five years since its accession to the EU.
This illustrates the positive role played by the CVM. The Commission considers
that in the future Romania could attain the objectives of the CVM, provided it
takes swift action to guarantee the rule of law, maintains the direction and
steps up the implementation of reforms. However, as set out in the introduction, recent events underline
concerns about the irreversibility and sustainability of the reforms. Romania
needs to ensure respect for the rule of law, including independent judicial
review. The trust of Romania's partners in the EU will only be won back through
proof that the rule of law is above party interests, that all sides show full
respect for judicial review including at constitutional level, and that the
reforms are irreversible. This needs legal steps – it also requires a political
commitment to the rule of law that has been absent from recent decisions. The
government has now committed to act swiftly to ensure respect for the rule of
law in line with the recommendations listed below (see IV 1) This reinforces the conclusion that the progress in implementation
of the benchmarks which would be required for the Commission to decide to end
the CVM is not yet present. Wider ownership of reform within all branches of
government, as well as within the judiciary, and a stronger commitment to
integrity and to the fight against corruption is necessary to satisfactorily
fulfil its requirements. In particular, the Romanian authorities need to
demonstrate that a sustainable and irreversible reform process has taken root
in Romania and that the external intervention of the CVM is no longer needed. This
is why recent steps by Government and in Parliament raise particular concerns. The experience of the last five years shows that when convincing
action is taken, it can bring results. Romania can already point to a positive
direction in the reform process in institutions like DNA and ANI, and in
targeted action like the acceleration of cases in the High Court. Recent events
have seen the judiciary taking a more proactive stance in defence of judicial
independence. Clearly, preserving such progress and maintaining momentum and
institutional stability in such cases are the first building blocks in
demonstrating sustainability. Moving swiftly from the successful phase of
legislation to a determined phase of implementation will bring closer the
moment when Romania will meet the requirements of the CVM. All Member States
have both obligations and opportunities within the area of freedom, security
and justice, and the Commission looks forward to Romania completing the
particular process of the CVM and addressing these issues on the same basis as
other Member States. Given current uncertainties, the Commission
will adopt a further report under the CVM for Romania before the end of 2012.
In this report, it will look at whether the concerns it expresses regarding the
rule of law and the independence of the judiciary have been addressed and
whether the democratic checks and balances have been restored. The Commission will monitor progress closely, with regular
missions, as well as frequent dialogue with the Romanian authorities and with
other Member States. IV. Recommendations The most important next step will be for
the government and the key institutions of Romania to demonstrate their
commitment to the indispensible foundation stones of the rule of law and
judicial independence. This requires a number of urgent steps by the government
and Parliament. Whilst the recommendations listed below include a number of
specific reforms needed to maintain progress under the CVM, the current
controversies described in the earlier part of the report raise important
concerns on the progress achieved so far and pose important questions as to the
sustainability and irreversibility of reforms already launched. Considering the
exceptional nature of these recent developments, this report includes specific
urgent recommendations to address the current situation notably under the
section 1: Respect for the rule of law and the independence of the judiciary. The Commission invited Romania to take immediate action in the
following areas in order to resolve the current controversies: 1. Respect for the rule of law and
the independence of the judiciary ·
Repeal of Emergency Ordinance no 38/2012 and
Emergency Ordinance no 41/2012 and ensure that
Constitutional Court rulings on the quorum for a referendum and the scope of
the Court's responsibilities are respected; ·
Respect constitutional requirements in issuing
emergency ordinances in the future; ·
Implement all the decisions of the
Constitutional Court ·
Ensure the immediate publication of all acts in
the Official Journal, including decisions of the Constitutional Court ·
Require all political parties and government
authorities to respect the independence of the judiciary; with a commitment to
discipline any government or party member who undermines the credibility
of judges or puts pressure on judicial institutions; ·
Appoint an Ombudsman enjoying cross-party
support, through a transparent and objective process, leading to the selection
of a personality with uncontested authority, integrity, and independence; ·
Introduce a transparent process for the
nomination of the General Prosecutor and Chief Prosecutor the National
Anti-Corruption Directorate. This should include open applications based on
criteria of professional expertise, integrity and a track record of
anti-corruption action. No nomination should be made under the acting
Presidency; ·
Avoid any presidential pardons during the acting
Presidency; ·
Refrain from appointing Ministers with integrity
rulings against them; ministers in that situation should step down; ·
Adopt clear procedures which require the
resignation of Members of Parliament with final decisions on incompatibility
and conflict of interest, or with final convictions for high-level corruption. By his letters of 16 July and the updated
annex of 17 July the Prime Minister of Romania confirmed to the President of
the Commission that all of these requirements have or will be met. Romania should also take action in the
following areas: 2. Reform of the judicial system: ·
Adopt and implement a joint comprehensive plan
to ensure implementation of all four codes, including all relevant aspects of,
structural and procedural reform, human resource adjustment, and investment
into judicial infrastructure. ·
Restructure the court system and prosecution
offices, rebalancing staff and workload, guided notably by the functional
review of the Romanian judicial system and the project on optimal workload in
courts currently funded by the World Bank. ·
Create a monitoring group for judicial reform
which involves all state powers, professional associations and civil society. 3. Accountability of the judicial
system: ·
Agree a joint policy between the SCM and the
Government to promote accountability and integrity within the judiciary through
convincing disciplinary practice and jurisprudence, with clear milestones for
implementation. Use the implementation of the new laws on disciplinary
responsibility and promotion to the High Court to set an example for the
judicial system as a whole. ·
Ensure better coordination of legal,
disciplinary and management instruments to protect the reputation of the
judiciary in serious cases of misconduct, including decisions on individual
rights, such as pensions. ·
Strengthen the capacity and performance of the
Judicial Inspection to both pursue judicial accountability through the
follow-up of individual cases, and to promote judicial efficiency, consistency
and good practice through regular reviews of practice at all levels of the
judicial system. 4. Consistency and transparency of the
judicial process ·
Develop a comprehensive approach to put in place
the structures, procedures and practices needed to accelerate legal
unification. Make legal unification a management priority for court presidents
and consistency an important element within the appraisal and promotion system
of judges. Ensure the full, on-line publication and continuous update of
motivated court decisions. ·
Further reform the High Court to allow stronger
focus on legal unification. 5. Effectiveness of judicial action ·
Establish and implement across the court system
clear best practice guidelines regarding sentencing, case management and the
consideration of evidence in criminal trials, with a particular emphasis on
areas where shortcomings have already been identified, such as in the complex
trials involving economic crimes and public procurement. ·
Introduce reforms to publish court motivations
swiftly after decisions are pronounced, to suspend prescription periods upon
the beginning of a judicial investigation, and to improve the quality and
availability of court expertise. ·
Continue the measures taken at the High Court to
accelerate high level corruption trials, ensure that prescription periods are
avoided, and introduce similar measures in other courts ·
Continue to improve the consistency and
dissuasiveness of penalties applied in high-level corruption cases in courts
across Romania. ·
Ensure that the results achieved by the Public
Ministry are continued under new leadership. 6. Integrity ·
Ensure a convincing track record of prompt and
dissuasive sanctions. Streamline the judicial review of the decisions of the
National Integrity Agency (ANI) through improvements to judicial procedures and
practice and through a review of ANI's legal framework, to speed up final
decisions and improve their consistency and dissuasiveness. ·
Improve the cooperation of judicial and other
administrative authorities with ANI with a view to ensure effective exchange of
signals and operational information in all three areas of ANI's activities.
Cooperation with ANI should be a clear performance measure for the leadership
of other administrative authorities. 7. Fight against corruption ·
Ensure that the results achieved by DNA are
continued under new leadership. ·
Implement the new National Anti-Corruption
Strategy as designed and set up a comprehensive system of monitoring so that
all agencies of government set targets and report annually, in a common and
comparable format, on the prevention and sanctioning of corruption, fraud and
conflict of interest. In line with the Strategy, establish clear procedural
rules and best practice for decisions of Parliament to allow investigation,
arrest and search of parliamentarians. ·
Demonstrate a track record in the prosecution of
money laundering as a stand-alone offence and deliver convincing results in the
recovery of the proceeds of crime, through strengthening judicial practice and
applying the new law on extended confiscation. ·
Establish a clear coordination and monitoring
mechanism between police, prosecution and administrative control authorities,
with specific responsibility for ensuring effective cooperation and
communication on corruption ·
Improve results in the prevention and
sanctioning of corruption, fraud and conflict of interest in public procurement
across all sectors of government activity. In this context, Romania should
provide proper follow-up to the recommendations of the external review of the
public procurement system carried out on the initiative of the Commission. [1] Conclusions of the Council of Ministers, 17 October
2006 (13339/06); 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, 13 December 2006 (C (2006)
6569 final) [2] It also provided for the possibility of a safeguard
mechanism, which has not had to be invoked. [3] The Conclusions of the
European Council of 28 and 29 June include a commitment by the EU within the
Compact for Growth and Jobs to tackle delays in judicial systems as part of the
modernisation of public administrations (European Council Conclusions 29 June
2012, page 8). [4] Flash Eurobarometer poll
conducted by the Commission in Romania in May 2012 (Flash Eurobarometer 351
"The Cooperation and Verification Mechanism for Bulgaria and Romania"
at: http://ec.europa.eu/public_opinion/index_en.htm
). [5] Flash Eurobarometer 351 [6] Points of reference include
the work of the Council of Europe, the OECD and UN agencies. [7] Experts
used in 2012 included senior practitioners from France, Germany, the United Kingdom,
Ireland, Spain, Poland and Slovenia. [8] Technical report, page 48. [9] For example, the work of ANI
would be much more effective if it enjoyed full cooperation from other
government agencies and energetic follow-up by the judiciary. [10] These conclusions are supported
by public perception. 65% of respondents of a Flash Eurobarometer poll
conducted in Romania believe that EU action through the CVM has had a positive
impact in addressing shortcomings in the judicial system (59% share this view
regarding corruption). At the same time, a large majority believes that the
situation in these two areas has stayed the same or has deteriorated in the
last five years. (Flash
Eurobarometer 351). [11] In June, the SCM’s public stance to defend the independence of the
judiciary in the light of public interventions in respect of one important
high-level corruption case sent an important message. [12] Statistics
of the ECHR show that Romania counts the second highest number of ECHR
judgments among any EU Member State which are pending execution. A large number of these judgments concern difficulties with civil enforcement,
the excessive length of civil proceedings and the absence of an effective
remedy and ineffective criminal investigations. (Council of Europe:
Supervision of the Execution of Judgements and Decisions of the ECHR, Annual
Report 2011 at: http://www.coe.int/t/dghl/monitoring/execution/Source/Publications/CM_annreport2011_en.pdf [13] The World Bank is currently
carrying out a Functional Review of the Romanian judicial system financed with
EU funds. A second project to improve the capacity to gather and process judicial
data and to establish optimal workload indicators across the judicial system is
currently being undertaken by consultants financed from a World Bank loan.. [14] The goal of the new preliminary
ruling procedure was to introduce a more proactive procedure than the current
appeal in the interest of the law (see Technical Report pages 6 – 7) [15] Non-compliance with the rulings
of the Constitutional Court and of the High Court of Cassation and Justice’s
appeals in the interest of the law may be the object of a disciplinary
investigation and sanction following amendments to provisions in the judicial laws
on the disciplinary responsibility of magistrates adopted in late 2011 and
promulgated in early 2012.. [16] Inconsistent jurisprudence is frequently reported in
Romania and confirmed by stakeholders such as foreign investors, law firms and
professional associations of magistrates. Inconsistent decisions have been
identified by experts in particular in sensitive cases involving high-level
defendants and in public procurement cases. [17] This includes disregard for the
jurisprudence of superior courts and the limited usage of the appeal in the
interest of the law procedure. The
number of appeals in the interest of the law decreased in 2011 compared to the
years 2007-2009. [18] with the exception of judges at
the High Court of Cassation and Justice who can access all judgements included
in the database. [19] The High Court tries a variety
of offences in first instance, where the offence is committed by certain
qualities of defendants. It also rules on internal judicial matters such as the
requests of parties to transfer cases to other courts or of conflicts of
jurisprudence between courts. [20] Logistical reasons have been
given to explain the fact that the provisions on the preliminary ruling in
civil law in the Civil Procedure Code come into force four months after the
rest of the Code. [21] World Bank Governance
Indicators 2011 [22] The Small Reform Law notably
allowed for the prosecution to take-over the motivations of the police in
deciding not to open an investigation in certain simple cases, granted the
prosecution greater possibilities not to pursue cases where existing evidence
does not warrant further investigation, and reduced legal remedies for minor
cases. [23] Romania is regularly sentenced
by the ECHR for infringements of procedural rights due to excessive judicial
delays. Delays in the publication of court motivations above the legal limit of
30 days are frequent. Reliable case retention data is so far not available and
should be delivered by a World Bank study in early 2013. [24] Responsibilities in the
management of the human resources of the judiciary are shared: the Superior
Council of the Magistracy has management responsibility for recruitment, career
progression, training and disciplinary action. The Minister of Justice holds
budgetary responsibility and legal initiative. The General Prosecutor is
responsible for the results of the prosecution, but all matters impacting on
the career of a prosecutor are decided by the Council. [25] Current recruitment capacities
cannot deliver the number of new recruits in time and of adequate quality and
preparedness as estimated as required by an impact study carried out for the
new codes. [26] This concerns notably the
proposals of the Minister of Justice and the General Prosecutor to close small
courts and prosecutors’ offices and to redistribute the posts to areas in most
need. [27] The Commission's assessment on
these points can be found on pages 13-14 in the Technical Update SEC(2011)968
published on 20 July 2011. It includes references to leniency in addressing
postponement requests by defendants, weaknesses in the administration of
evidence and in handling procedural irregularities, and organisational issues. [28] Technical Update SEC(2011)968
of 20 July 2011, page 14. Since the Commission's last annual report, the High
Court of Cassation and Justice has received a special budget for court experts. [29] Examples of important
innovations include the introduction of sentencing guidelines for corruption
offences and steps to improve the celerity of high level corruption trials.
However, best practices applied in these discrete areas have not yet been
mainstreamed. [30] These legal amendments will
allow the Minister of Justice and the General Prosecutor to initiate
disciplinary action, through the Judicial Inspection. The Judicial Inspection
now has a stronger mandate to look into judicial practice and may also appeal
disciplinary sanctions imposed by the Superior Council of the Magistracy. [31] The Judicial Inspection
delivered three first reports in this sense at the end of 2011 and in the
beginning of 2012: two thematic reports on important case delays and on
celerity of high-level corruption cases and a report on management practice at
the High Court of Cassation and Justice. [32] The Commission reported on such
cases in February 2012 (COM(2012)56final, page 3) [33] The Commission reported in
February 2012 on cases of judges at the High Court of Cassation and Justice who
continue to sit in court while under investigation for high-level corruption.
Other judges escaped disciplinary responsibility through retirement
(COM(2012)56 final, page 3). However, the recent SCM response to the launch of
an investigation into one of their own SCM members has shown a more proactive
approach to address threats to the reputation of the judiciary. [34] According to a Special Eurobarometer
of February 2012, 96% of Romanians, a slightly higher percentage than in 2007
considered corruption a major problem (Special Eurobarometer 374 at: http://ec.europa.eu/public_opinion/index_en.htm) Since 2007, Romania has lost 6 places in
the TI corruption perception index with the decline of their perception rating.
The Freedom House rating remained unchanged. [35] According to a Eurobarometer of
February 2012, 67% of Romanians consider that corruption had increased in the
last three years [36] DNA indicted 167 cases against
415 defendants in 2007 and 233 cases against 1091 defendants in 2011. About 60%
of all investigations take less than 6 months. Since 2007, DNA has indicted a
former Prime Minister, a former deputy Prime Minister, a number of former ministers
and Members of Parliament, numerous prefects, mayors, county councillors and
heads of state-owned enterprises. In 2011, DNA indicted two Members of
Parliament and one influential mayor of the then governing coalition and one MP
of the opposition at the time. [37] Non-final decisions were
reached against 199 defendants in 2007 and against 879 defendants in 2011;
final decisions were reached against 109 defendants in 2007 and against 158
defendants in 2011. [38] The possibility of prescription
in Romania does not end when investigations or court proceedings start, as in
many other jurisdictions. [39] This was achieved by excluding
from the time period in calculating the date of prescription, periods of time
during which a trial was suspended pending the ruling of the Constitutional
Court on an unconstitutionality exception. [40] See Technical Report page 29. [41] The Commission’s report of 20
July 2011, COM(2011) 460 final, recommended that Romania “take urgent measures
to improve judicial practice and case management and accelerate important
high-level corruption cases to avoid reaching statute barred periods in all
cases”. The same report further recommended that Romania “continue the reform
of the High Court of Cassation and Justice in order to strengthen its cassation
role and to increase its capacity to deal with high-level corruption cases”. [42] See Technical Report, page 25. [43] See for example, the
Commission’s assessment on page 15 in the Technical Update SEC(2011)968
published on 20 July 2011. [44] Out of 43 indictments
registered by DNA in courts since 2006, only two final decisions were reached. [45] Data
since 2007 shows that about 60% of sentences are set by courts at the legal
minimum or below. Though the share of suspended sentences for imprisonment
decreased from 75% (2007-2009) to 60% in 2011, suspended sentences are still
predominant, particularly in important cases. All three current or former Members
of Parliament who received final sentences in 2011 three received suspended
sentences. [46] This is not yet standard
practice: the local elections in June included several mayoral and county
council president candidates under arrest, criminal investigation or trial for
corruption, a number of whom were elected. [47] See Technical Report pages 26 –
27. [48] See Technical Report page 27. [49] Three Members of Parliament who
have been convicted for high-level corruption by final decision continue to sit
in Parliament. [50] These rulings followed appeals
to court against ANI findings on incompatibility. [51] See Technical Report pages 18 –
19. [52] The power of ANI to suggest the
forfeiture of unjustified assets to court was considered to breach the
constitutional principles of the separation of powers and the presumption of,
and prohibition from confiscating, legally acquired wealth. [53] The legal committee of the
Chamber of Deputies proposed that no action should be taken against two MPs
with definitive findings of incompatibility or conflict of interest against
their names. Final decisions of the Parliament in respect of both cases are
still pending. [54] The amended law also forced ANI
to abandon a significant number of cases investigated at that moment due to the
introduction of prescription periods. The vast majority of these cases
concerned elected politicians [55] So far, an administrative
conflict of interest has been confirmed in only two cases; in neither case have
the underlying contracts been cancelled. [56] Recent cases in public
discussion include two Members of Parliament who are also University Rectors.
In one case an incompatibility was identified, in the second case, the same court
denied an incompatibility. A similar episode has been repeated at another Court
of Appeal. These cases are now pending appeal at the High Court of Cassation
and Justice. [57] Overall, as of March 2012, ANI
has carried out nearly 4000 verifications and issued findings or referrals in
over 500 cases: including 250 findings of incompatibility, 37 cases of
(administrative) conflict of interest, 24 cases of suspected unjustified assets
and 239 referrals of possible criminal offences to the prosecution. [58] The screening
exercise has so far resulted in 75 findings of incompatibility, 9 findings of
administrative conflict of interest, and referrals to prosecutors covering 50
suspected criminal offences. [59] A
useful step is the support of the Ministry of Justice for improving the
salaries of ANI personnel. [60] So far findings by ANI of
incompatibilities have been finally confirmed by the courts or have become
definitive by virtue of not being appealed within the time periods stipulated
by law in 118 cases. In 53 of these cases officials resigned as a result, in 8
cases disciplinary committees pronounced dismissals and in a further 16 cases
other sanctions were taken. [61] A joint working group between
the Ministry of Justice and ANI has already made proposals which have not so
far been taken forward. [62] In particular, they cooperated
with the DNA in a number of important and complex investigations including concerning corruption in
the issuing of driving licenses (2008) and within the border police (2010-11).
Overall, since 2007, GAD has submitted over 1000 cases to DNA which so far led
to 222 indictments for high-level corruption. During the same period GAD
submitted over 6300 other corruption files to the prosecution which led to 836
indictments so far. [63] Comprehensive anti-corruption
activities have not yet been taken up in areas such as tax, customs but also
regarding construction permits in local government. [64] This will strengthen the detection of irregularities in
health sector procurement, whilst a further important project to strengthen
awareness of patients rights and to tackle the supply side of corruption in the
health system is proposed. An anti-corruption project has also been launched by
the Ministry of Regional Development and Tourism to develop analyse corruption
vulnerabilities within the Ministry and its subordinated structures and to
develop a detailed strategy. [65] This month the Government
approved the creation of an integrity unit within the National Agency for
Fiscal Administration. Its structure, powers and resourcing has still to be
determined. [66] In the area of public
procurement, the competent control authority ANRMAP forwarded only five signals
to DNA since 2007. In 2011, ANRMAP forwarded only three signals on conflict of
interest. [67] See Technical Report pages 34 –
35. [68] The establishment of an asset
recovery office responds to requirements in Council Decision 2007/845/JHA. [69] There is not yet a common
vision within the profession regarding third-party confiscation and a lack of
jurisprudence. The Constitutional provision according to which the licit origin
of property is presumed contributes to a cautious approach and non-unitary
practice in this area. [70] Jurisprudence has been
established in one case and a legal opinion was issued by the General Prosecutor. [71] Between 2007 and 2011, 42 convictions were achieved for
money laundering offences. [72] Technical Report, page 40. [73] See footnote 56.