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Document 52013DC0047
REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL On Progress in Romania under the Co-operation and Verification Mechanism
REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL On Progress in Romania under the Co-operation and Verification Mechanism
REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL On Progress in Romania under the Co-operation and Verification Mechanism
/* COM/2013/047 final */
REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL On Progress in Romania under the Co-operation and Verification Mechanism /* COM/2013/047 final */
In July
2012, the Commission reported on Romania's progress since 2007 under the
Cooperation and Verification Mechanism (CVM).[1]
The report looked at the sustainability and irreversibility of the reforms put
in place. As the report was issued at a time when important questions were
raised with regard to the rule of law and the independence of the judiciary in
Romania, it included specific recommendations to restore respect for these
fundamental principles. It was also decided to report six months later, with a
focus on the Commission's recommendations in this area. Over
the last six months, the situation in Romania has been dominated by the run-up
to the recent elections. The Commission believes that the nomination of the new
government after the elections provides a fresh opportunity to ensure respect for
the rule of law and judicial independence and ensure stability. Loyal
cooperation between institutions and stability in the separation of powers are
important foundation stones to provide the right platform for making progress
on the issues of judicial reform and the fight against corruption. This
report takes stock of the specific recommendations issued by the Commission on
the respect for the rule of law and the independence of the judiciary. It also
reports on the CVM benchmarks on the other aspects of reform of the judicial
system and the fight against corruption.
1. Respect
for the rule of law and the independence of the judiciary
The
Commission issued ten specific recommendations to help resolve the controversies
on the rule of law and judicial independence. The Romanian government
confirmed to the Commission that it would implement these recommendations.[2] The Commission
has been closely monitoring progress on these points, in the light of the
benchmarks set in the CVM decision. The
assessment shows that Romania has implemented several
but not all of the Commission's recommendations aiming at
restoring rule of law and the independence of the judiciary. While the
Constitution and the Constitutional Court's role and decisions have been
respected, commitments regarding the independence of the judiciary and
regarding the response to integrity rulings have not been adequately
implemented. At the same time, the appointment of a new leadership for the
prosecution and the DNA is still outstanding. The
Romanian Constitutional order One of
the primary concerns expressed by the Commission in July was the stability of
the Constitutional order. The
role of the Constitutional Court is of particular importance here. The powers
of the Constitutional Court to check the constitutionality of the decisions
adopted by the Parliament have effectively been reinstated by means of the
Constitutional Court's judgments, and Emergency Ordinance 38 is therefore "de
facto" inapplicable.[3]
The repeal of Emergency Ordinance 41 ensured respect for the Court's rulings on
the quorum for a referendum. The fact that the final Constitutional Court
ruling on the validity of the 29 July referendum[4]
was respected was a key signal that Constitutional norms were no longer being
put in question. Another
source of concern had been the recourse to emergency ordinances, a concern
shared by the Venice Commission of the Council of Europe.[5] The use of
this power in early July played an important role in the concerns about
by-passing Constitutional norms. The Romanian government committed to use
emergency ordinances strictly for the situations set out in the Constitution,
and only in case of emergency. There has been less concern on this issue in
recent months, and the start of a new Parliament with a clear majority should
help to consolidate the ordinary legislative procedures as the right way to
legislate. The
Commission notes that all acts, including decisions of the Constitutional
Court, appear to have been published in a timely fashion in the Official
Journal. The
Parliament appointed the new Ombudsman in January 2013. The fact that the new
Ombudsman received the full support of the ruling coalition but not the
opposition will make it particularly important for him to show in his actions
that he can rise above party lines. The Ombudsman has an important role in safeguarding
the checks and balances of the system, and in particular to control the powers
of the executive to legislate through ordinances. In
summary, the place of the Constitution and the Constitutional Court has been
restored in line with the Commission's recommendations. It is however essential
that the President, the new
government and parliament ensure the stability of the constitutional order,
and all political parties should work to reduce the
polarisation of the political system In the
run-up to the elections, there has also been a discussion about possible
Constitutional change. What is important is that the process of constitutional
reform progresses in full respect of fundamental values such as respect for the
rule of law and the separation of powers. This includes continued respect for
the Constitutional Court as the guarantor of the supremacy of the Constitution,
as well as the independence and stability of judicial institutions including
the prosecution. It is also important that the debate about possible reform
allows enough time and openness to secure through the appropriate
constitutional procedure the widest possible consensus. It is also essential in
this context to reassure judicial institutions that their independence is
secured, and to avoid speculation creating a climate of instability. Independence
of the judiciary One of
the major concerns over the summer was the clear evidence of pressure on
judicial institutions and lack of respect for the independence of the judiciary.
This remains a major source of concern. The Commission received numerous
reports of intimidation or harassment against individuals working in key
judicial and anti-corruption institutions, including personal
threats against judges and their families, and media campaigns amounting to
harassment.[6]
Unfortunately,
the Commission's recommendation has not been fully implemented. Politically
motivated attacks on the judiciary have not ended. A
critical point is the acceptance of judicial decisions: this requires the
whole of the political class to form a
consensus to refrain from discrediting
judicial decisions, undermining the credibility of magistrates or putting
pressure on them. The
Commission would also like to draw attention to the role of the media. There
have been numerous examples of the media exercising pressure on the judiciary, as
well as particular doubts whether the National Audiovisual Council is proving
an effective watchdog. The situation
suggests the need for a review of existing rules, to ensure that freedom of the
press is accompanied by a proper protection of institutions and of individuals'
fundamental rights as well as to provide for effective redress. A
specific issue was that the Commission was concerned that previous judicial
decisions could be overturned through pardons in the particular circumstances
of an interim presidency last summer. The interim President respected this
recommendation in full. A final
aspect of judicial independence is the commitment of the executive and
legislature to the quality of appointments to key posts in judicial
institutions. The Commission considers that the track record of Romania against
high-level corruption has been one of the important advances under the CVM. An
effective and impartial prosecution must be maintained under future leadership.
The Commission therefore considers that it is essential to put in place a new
leadership in the prosecution and the National Anti-corruption Directorate (DNA)
which can demonstrate the independence, integrity and professionalism needed to
enjoy the confidence of the public and continue to deliver effective results. The
report highlighted in this context the nomination of a new General Prosecutor
and Chief Prosecutor of the DNA, in terms both of an open and transparent process
and of choosing candidates with expertise, integrity, and a track record of
anti-corruption action. The process was initially rushed and did not inspire
the confidence of the magistracy. The Minister of Justice then extended
deadlines and made a number of procedural improvements,[7] but only a
limited range of candidates applied. The two candidates who emerged from the
process failed to secure positive opinions from the Superior Council of
Magistracy (SCM), and they were eventually rejected by the President. The
Commission considers that a sufficient number of high quality candidates in an
open and transparent process and, as far as possible with support
from the SCM are essential elements to secure a leadership able to command
public confidence. Integrity Those
in positions of power must demonstrate high standards of integrity. In addition,
where judicial authorities find that this is not the case, failure to respond
to judicial decisions also implies a lack of respect for the rule of law. In its
July report, the Commission was concerned that both the government and the
Parliament did not fully respect this principle. In
November, National Integrity Agency (ANI) reports[8] against
ministers and senior officials did not lead to their resignations.[9] The new government
reiterated its goal of tackling corruption, but amongst the new Ministers are
two confirmed cases under
criminal investigation for corruption. In its July recommendations, the
Commission set out its expectation that Ministers set an example in respect of
integrity issues: the same should be expected in respect of corruption charges.
It is essential for the credibility of a government that those in charge of
ministerial functions enjoy the confidence of the public, for
example by stepping down when
there is an integrity report from ANI against them.
Constitutional requirements, including suspension from Ministerial office on
indictment, will need to be applied in full. Similarly,
the credibility of the Parliament would benefit from clearer procedures concerning
the handling of cases where Members of Parliament face rulings on integrity
issues or face corruption allegations. The presumption should be that, within
the established Constitutional rules, the prosecution can conduct its work in
the same way as faced by other citizens. Clarity and automaticity are the best
ways to offset previous concerns that there has been a degree of subjectivity in
parliamentary proceedings in this area. The Parliament
adopted in January 2013 amendments to the statute of the Members of Parliament,
changing the procedure for lifting immunities in the cases of the search,
arrest or detention of parliamentarians and the prosecution of former Ministers.
Further steps are foreseen, including a Code of Conduct.
These will need to include a deadline for each stage of
the procedure, and that
where the Parliament refuses to lift the immunity, it
provides a full justification. It is also important to
clarify that ANI remains the sole authority tasked with the verification of
potential incompatibilities of elected and appointed officials. In
terms of Parliament's approach, the broader challenge made to judicial
decisions in one case was a major concern: the SCM had to appeal to the
Constitutional Court to ensure that the Parliament effectively implemented a
High Court ruling in final instance. [10]
It is hoped that the new procedures will prevent a repetition of such
problems. Recommendations The
Commission welcomes the positive steps taken since July, but considers that much
remains to be done to fully implement its recommendations. The entry into
function of a new government and a new Parliament offers an excellent
opportunity to consolidate these steps and address the still outstanding
points. The principles underlying the Commission's recommendations of
protecting the rule of law and protecting the ability of the judiciary to reach
decisions without interference will remain central to the Commission's approach
in the future It will
be important to continue to respect the
responsibilities and decisions of the Constitutional Court, and ensure full
compliance with all constitutional requirements to ensure the pluralist
functioning of Romanian democracy and reduce its polarisation.
It will also be important to ensure that the process of
constitutional reform fully respects the rule of law, the separation of powers
and judicial independence and stability, while being based on the widest
possible consensus The new
government has already signalled its commitment to the independence of the
judiciary and the supremacy of rule of law in the Institutional Collaboration
Agreement between the President and the Prime Minister. This should now be
followed up in particular through the following: ·
Introduce a clear
framework[11]
of requirements to
refrain from discrediting
judicial decisions and undermining
or putting pressure on magistrates, and
ensure effective enforcement of these requirements. The Superior Council of
Magistracy should be invited to give an opinion on the relevant provisions; ·
Review existing standards
to safeguard a free and pluralist media while ensuring
effective redress against violation of individuals'
fundamental rights and against undue pressure or
intimidation from the media against the judiciary and anti-corruption
institutions. The National Audiovisual Council should be assured
of its effective independence, and play fully its role by
establishing and enforcing a Code of Conduct in this regard; ·
Ensure that the new leadership in the
prosecution and the DNA are chosen from a sufficient range of high quality candidates
after an open and transparent process, meet the criteria set out in the
Institutional Collaboration Agreement, in particular professional expertise,
integrity and a track-record of anti-corruption action. A positive opinion from
the Superior Council of Magistracy will be an important step in securing public
confidence; ·
The new Ombudsman will need to show uncontested
authority, integrity, and independence, as well as a non-partisan approach; ·
Take the necessary steps to ensure that Ministers
subject to integrity rulings step down. Ensure swift application of the
Constitutional rules on suspension of Ministers on indictment; ·
Parliament should build on the new rules to adopt
clear, and objective procedures
to suspend parliamentarians subject to negative integrity rulings or corruption
convictions; and to fix swift deadlines for processing requests from the
prosecution to lift immunity of parliamentarians. Full justification should be
given if Parliament does not let normal law enforcement take its course.
2. Reform
of the judicial system, integrity, fight against corruption
This section reviews progress against the background of the
benchmarks set out in the co-operation and verification mechanism and previous
Commission recommendations. These
remain valid and will be assessed in the next report.
Reform
of the judicial system The
first recommendation in the July report on reform of the judicial system
related to the implementation of all four legal codes[12]. The
planning for the implementation of this key reform remains uncertain. The entry
into force of the Code of Civil Procedure is still planned for February 2013. The
entry into force of the Criminal Code and the Code of Criminal Procedure is
tentatively scheduled for February 2014. More clarity is needed on how to avoid
these dates slipping still further. Since
the last report the Ministry of Justice has set out a multiannual strategy for
the implementation of the Codes, including resources aspects. Assessing
possible impacts only after the adoption of the Codes by the Parliament creates
extra uncertainty, and a full assessment of the impact on human resources
aspects is only foreseen for 2014.[13]
This process will be complicated if the text of the Codes is frequently
reopened: the overall objective of ensuring that justice can be pursued and
realised more effectively and quickly should not be lost, for example in the
presentation of evidence in court on corruption cases. The
second Recommendation related to the overall workload pressures on the Romanian
judicial system, and the need to restructure the court system and prosecution
offices, rebalancing staff and workload. The government is tackling some of the
particular causes of a wave of new cases at source, through legislative change.[14] Such efforts
to reduce the workload on points of pressure in the system may be more
effective than trying to solve the problem by increasing the number of judges
and prosecutors – which could also risk jeopardising recent improvements in the
quality and training of new entrants into the profession. The
last recommendation related to the creation of an overarching monitoring group
for judicial reform. This reflected the need to create a consensus for
reforming the judicial system. Since the July report, there has been no
progress in bringing together the key players in an effective way. Accountability
of the Judicial System The new
legal framework for the Judicial Inspection adopted in 2011 has allowed the
Judicial Inspection to deliver more effectively, resulting in 21 new disciplinary
actions taken in its first few months.[15]
The Ministry of Justice has supported the new Inspectorate with a number of
practical measures, including arranging for a new headquarters building. More
general lessons learned from individual cases could feed into the joint policy
recommended by the Commission for the Superior Council of Magistracy (SCM) and
government to promote accountability and integrity. Another
essential element of the reputation and the accountability of the judicial
system is the procedure for the appointment of magistrates. The new
arrangements for promotion to the High Court of Cassation and Justice seem to
have introduced a new rigour into the system: it seems more important to
maintain the quality of competition rather than to redress perceived shortages
which may prove short-term. Consistency
and effectiveness of judicial action The consistency
and transparency of the judicial process is a key element in its credibility
and its effectiveness. Since the July report, the High Court of Cassation and
Justice has continued to take concrete steps to unify jurisprudence and improve
its quality, ensuring the transmission of decisions to lower courts and
improving online access. Gradually transforming the High Court of Cassation and
Justice in a fully-fledged court of cassation, with fewer responsibilities for
appeal, would also assist the concentration on the unification of jurisprudence
on points of law. The procedure of appeal in the interest of the law is already
helping to progress in this direction. It will be important to ensure that
these steps forward are not jeopardised by extra workload via the new procedure
on preliminary rulings, whilst the existing number of judges on panels at the
HCCJ seems to offer the right balance. An
important issue for the unification of jurisprudence is the updating of the
outdated IT system. This limits judges' knowledge of parallel judgements. Two
projects are underway. The Ministry of Justice intends to implement a strategy
to have a simple and quick access to ECRIS (the main judicial database) and the
SCM also tries to improve in parallel the existing "Jurindex" system
(an alternative system). It would be useful to progress these initiatives in
tandem.[16] Effectiveness
of judicial action The High
Court's approach towards high-level corruption cases has continued to be
characterised by a welcome degree of proactive case management. The HCCJ
reported significant progress in the handling of high level corruption cases
with a decrease from 28 to 10 open cases, as well as a rise in the number of
cases solved in first instance. Where defendants have been convicted, there has
also continued to be a more proportionate and consistent approach to penalties.
The result is that justice is seen to be performing its dissuasive role more
effectively. Effectiveness
also requires law enforcement to be working effectively and fairly throughout
the system. The HCCJ has continued to make progress with setting standards and
guidelines for lower courts. The
past few months have seen the Public Ministry, the Directorate-General for
Anti-Corruption and the High Court all continuing to work professionally and
impartially, sometimes under extreme pressure. The resilience of these
institutions so far reinforces the conclusion that their track record on
high-level corruption is one of the most significant signs of progress achieved
by Romania under the CVM. It is essential that this advance is maintained under
new leadership. It must also not be undermined by other restrictions on the
ability of law enforcement agencies to pursue justice.[17] Integrity Since
the last report, the National Integrity Agency (ANI) has continued to develop
its track record and to develop its operational efficiency[18]. ANI has
started an ambitious IT project aiming at collecting data on elected and
appointed officials, allowing for a cross-check with other state databases, such
as the registry of commerce or the tax office, to detect conflicts of interest.
This will however need additional resources to work in full. It
remains a major concern that ANI's decisions are under frequent question. This
is despite the fact that when challenged, it has a strong record of winning
appeals against its rulings in court. Both the Agency, the National Integrity
Council (NIC) and their personnel have been subject to frequent political and
media attacks. Parliament failed to enforce an ANI reports, even when backed up
by final court decisions (see above). In November 2012 ANI issued four
incompatibility reports against Ministers and senior officials. All four have
been challenged in court and none stepped down from office on these grounds.[19].Together with
the frequent suggestions to amend ANI's legal framework, this creates an
uncertainty which hinders Romania's ability to show that a robust integrity
framework is in place. Fight
against corruption DNA has
continued to investigate and bring forward corruption cases successfully. The
number of final convictions issued based on the prosecutions launched by DNA
has doubled in 2012 in comparison with the previous year. These have concerned
politicians of all main parties. There has also been a constant increase in
indictment and conviction in EU fraud cases led by DNA. This can serve as an
important example for the prosecution as a whole, where there are signs of wide
discrepancies in the results achieved by different prosecution offices. The CVM
also requires strong efforts to tackle corruption at all levels of Romanian
society. Surveys consistently show high levels of public concern about the
prevalence of corruption.[20]
In this context, the July report welcomed the National Anti-Corruption
Strategy. There have been some important steps taken by some departments, and
the participation of local authorities seems to progress[21].
The Ministry of Justice has put in place structures to help make this work,
which seem to be taken the process forward in spite of their small numbers.
Field missions and a search for best practice are showing a welcome degree of
proactivity. It is important to ensure that adequate resources are being
secured for the smooth implementation of the Strategy. In addition to this, EU
funds are financing a number of anti-corruption projects, including in the
Ministries of Education, Health and Regional Development and Public
Administration. Implementation is progressing and results are now awaited. Another
important element is the prosecution of money laundering and confiscation. The
new legal framework on extended confiscation was put in place in 2012, but it
is too early to yet assess its effectiveness. As regards money laundering as a
stand-alone offence, an important case is now before the HCCJ. The Asset
Recovery Office has seen an increase in the requests it is handling and notably
on requests issued by Romanian authorities. There are currently no comprehensive
statistics with exact amounts of confiscated assets, but the estimates tend to
be low. There are also no comprehensive statistics available on the amounts
that were actually recovered following the confiscation orders. Finally,
progress seems very limited in the prevention and sanctioning of corruption
related to public procurement. The advances made against high-level corruption
have not been matched in public procurement. Cases seem to take a long time,
partly due the need for specific financial expertise, leading to the particular
problem of contracts concluded before court judgement on the offence. The
penalties for officials involved in fraudulent public procurement cases
continue to be very low and the law does not foresee a possibility of a
cancellation on the grounds of conflict of interest of projects that have
already been executed. There are also major doubts on the effectiveness of prosecution
handling of these cases. [22]
Recent proposals seem to call into question the stable independent
institutional basis essential for real progress. A more systematic approach to
ex ante checks, most logically a role for ANI (with new resources) that would
also ensure a uniform and systemic implementation, would offer a useful way
forward.
3.
Conclusion
This assessment
shows that Romania has implemented several, but not all,
of the Commission's recommendations aiming at restoring rule
of law and the independence of the judiciary. While the Constitution and the
Constitutional Court's role and decisions have been respected, commitments
regarding the protection of the judiciary against attacks, the stepping
down of Ministers with integrity rulings against them
and the resignation of Members of Parliament with final decisions on
incompatibility and conflict of interest, or with final convictions for
high-level corruption have not been fully implemented. At the same time, the
appointment of a new leadership for the prosecution and the DNA remains to be
done. The
Commission believes that the election of a new Parliament and the appointment
of a new government provide the opportunity to deliver fully and rapidly on these
recommendations. It urges the new government to take the necessary steps. The
Commission also notes the need to accelerate progress on its recommendations of
the reform of the judiciary, integrity and the fight against corruption. It
will monitor progress closely, in a constant dialogue with the Romanian
authorities, and will report at the end of 2013 on the reform process. [1] COM(2012)410 final. Its analysis and recommendations was endorsed in conclusions adopted by the General Affairs Council in September. [2] Letters of 16 July and 17
July 2012 [3] Emergency Ordinance 38/2012
has not been formally repealed. However, the decisions of the Constitutional Court no.727 of 9 July 2012 and no.738 of 19 September 2012 found the
Emergency Ordinance 38 unconstitutional. Formally, Emergency Ordinance 38 should be repealed to comply
with the ruling of the Constitutional Court. [4] Ruling no. 6 of the
Constitutional Court of 21 August 2012. Followed the approval by the Senate on
19/09/2012 of the Law amending Government Emergency Ordinance no. 41 for
amending Law no. 3/2000 concerning the Organization of the Referendum [5] The Venice Commission
considered that the issue of the excessive use of government emergency
ordinances should be addressed: http://www.venice.coe.int/webforms/documents/CDL-AD(2012)026-e.aspx [6] For example the allegations of pressure
and intimidation of judges of the Constitutional Court which have been brought
to the attention of the Commission. Letter from President Barroso to Romanian
Prime Minister Victor Ponta of 10/08/2012:
http://europa.eu/rapid/press-release_MEMO-12-621_en.htm [7] Some of the changes followed
discussions with both the European Commission and the Superior Council of
Magistracy. [8] ANI reports have a direct
effect unless challenged in courts within 15 days. It should also be noted that
only around 5% of ANI reports are successfully challenged in Court. [9] None of these four
individuals are part of the new government. [10] The Constitutional Court
ruled on the constitutional conflict between the judiciary and the Senate in a
case where a final High Court of Cassation and Justice decision had confirmed
an incompatibility decision on a senator (Decision of the Constitutional Court
no.972 of 21 November 2012). The Constitutional Court ruling had still not been
applied when the term of office of the Senate came to an end. [11] For example, a code of conduct [12] The new Civil and Criminal
Codes and the accompanying procedural codes were adopted in 2009 and 2010, but
only the Civil Code has entered into force so far. There is no certainty about
when the remaining Codes will enter into force but the authorities have
recently confirmed that the Civil Procedure Code will enter into force on 1
February 2013. [13] The July 2012 CVM report
pointed to the need to distinguish between the impact of the Codes on resources
and broader issues about the workload on the judiciary. [14] For example, replacing a
judicial procedure with an administrative procedure for handling questions
related to taxes on first registration of a car – which is expected to relieve
the courts of some 100.000 files. [15] A particularly important
case over the summer resulted in the suspension pending investigation of a
prosecutor who is also a member of the Supreme Council of the Magistracy. [16] The Ministry of Justice has
also launched a medium-term project to help codify legislation, with possible
changes to speed up the process of updating. [17] For example, a recent
suggestion that evidence gather by law enforcement while investigating other
crimes could not be used in corruption trials [18] It is also helpful that an
appeal from ANI to a decision by a Wealth Investigation Commission has been
admitted in Court. [19] The three Ministers
concerned appealed the reports. Another senior official stood down for other
reasons (and also appealed).. [20] Cf. Eurobarometer n° 374 of
February 2012, http://ec.europa.eu/public_opinion/archives/ebs/ebs_374_en.pdf
and the Transparency International 2012 Corruption Perceptions Index,
http://www.transparency.org/cpi2012/results [21] In January 2013, 1874 city
halls and 20 county councils had registered with the NAS Secretariat [22] Cases emerge through the
Commission's monitoring of public procurement legislation where strong evidence
of wrongdoing seems to have received no follow-up by the prosecution.