Expert Report on the Fight
against Corruption /
Cooperation and Verification
W. DE PAUW 1
12-15 November 2007
1 . The author is deputy prosecutor general at the Court of Appeal in Ghent (Belgium). He
provided expertise on anti-corruption to the EC during the following missions to Romania : 2 nd
1. Introduction. This report provides an update on the present situation in
Romania with regard to Benchmark (BM) 3 of the Cooperation and Verification
Mechanism, set up by Commission decision 2006/928/EC for the areas of judicial
reform and the fight against corruption. The report is based on meetings with, and
documents provided by : the EC, and in Romania : the Ministry of Justice (MOJ) ,
the Court of Cassation (HCCJ), the Prosecutor General (PG) at the HCCJ, the Anti-
Corruption Directorate (DNA), the National Institute for Magistrates (NIM), the
Superior Council for the Magistracy (SCM), the representatives of several
departments within the Ministry of Interior (MOI) engaged in the fight against
corruption, the OLAF representative in Romania, representatives from several non-
governmental organisations involved in the fight against corruption and/or judicial
reform (a.o. Transparancy International, Romanian Academic Society, Sojust
I. ACTION PLAN
2. The Romanian Goverment adopted an Action Plan for Meeting the
Benchmarks established within the Cooperation and Verification Mechanism. The
Action Plan (AP) was drafted by the MOJ in cooperation with the institutions
adressed therein, and was subject of internal discussion and consultation
(21/09/2007 – 17/10/2007). The EC also offered experts for an ex-ante evaluation of
the AP (08 – 12/10/2007).
The AP covers all Benchmarks, and describes, in detail, the activities that are to be
executed to adress a specific Benchmark, the stage of progress that activity is in, it’s
deadline, the institutions responsible for implementing the activity, the indicators with
which performance under this BM will be measured, the source(s) for verification,
and the funding of the activity.
For the purposes of this report, only the topics dealing with BM3 and (partly) BM4 will
JHA-Assessment, November 2001 ; 3 rd JHA-Assessment, April 2004 ; 1 st Peer Review, June
3. BM3, Title I, contains a series of measures entitled “Ensuring the efficient
investigation of high-level corruption and strengthening the institutional framework”.
3.1. BM.3.I.1 (“Conducting professional and non-partisan investigations into high-
level corruption cases”) basically concerns the activity of DNA, and gives, on the
whole, a well balanced and usefull overview of the continuing support that is to be
given, under the AP, to this institutions’ core business.
3.2. According to the AP, the annual evaluation of the DNA BM.3.I.1.2. will use as
a performance indicator (amongst others) “ the number of news in media with link to
or presents confidential information from the files investigated by the DNA”.
3.3. Although lack of confidentiality in a criminal investigation can, under certain
specific circumstances and on the long term, be damaging for the case of the
prosecution (and the much broader discussion of the relation press/judicial
proceedings/fundamental rights, could be relevant in a general post factum analysis,
based upon existing case-law), it is rather strange and far fetched to find this
indicator in an action plan that very specifically aims at measuring shortterm
performance in investigating and prosecuting highlevel corruption, for which, in the
overwhelming majority of the cases, judicial proceedings have yet to be brought to a
conclusion (as if, for example, one would measure the progress of the Portugese
investigation concerning Madeleine McCann, on the basis of the leaks to the press,
or the absence thereof, instead of on finding back the victim or solving the case).
At the very least, it should be said that the AP here intends to use a general and
longterm indicator, for measuring a specific and shortterm performance. This is
methodologically incorrect, and can lead to false conclusions.
Secondly, this indicator appears to be based upon the assumption by the MOJ, that
every leak in the press concerning a case investigated by DNA, automatically derives
from negligence or intent within DNA. The MOJ has, however, not convincingly
argued that this assumption is correct. Almost all criminal investigations entail the
intervention of several actors (prosecution, different police departments, pre-trial
judges, etc.). This is no different in Romania.
2005 ; 2 nd Peer Review, March 2006.
As long as there is no watertight and foolproof follow-up of the chain of information in
a criminal investigation – and even the MOJ does not claim this exists at present –,
the automatic assumption of one particular actor to be responsible for leaks to the
press, is prejudiced and bound to lead to incorrect conclusions.
3.4. Therefore, as an objective instrument of performance-measurement, this
indicator has no value.
3.5. In reality, this indicator refers to the MOJ’s accusations that information
concerning high-level corruption cases is being deliberately leaked to the press by
the DNA (this accusation is general knowledge : the Minister of Justice himself made
many statements to the press in this regard).
With the AP’s clear intention to regard all leaks from DNA-investigations to the press,
as the work and responsibility of the DNA itself, the MOJ apparently hopes to
disqualify the DNA’s performance on the basis of a indicator that is presented as
“objective”. It should furthermore be noted that this performance indicator was not
present in the first draft of the AP (and was consequently not discussed during the
ex-ante evaluation, nor adressed in the ex-ante evaluation expert report), but
apparently slipped into the final version of the AP as adopted by the Government, at
the very last moment.
3.6. Under BM3.I.2. (“Informing the general public on the results of the fight
against corruption, with the observance of the confidentiality of the ongoing
investigations and the rules of data protection)”), a communication strategy for DNA
will be adopted and implemented (see also Phare RO/2004/IB/JH/-02).
The inclusion of this item in the AP is positive, as the importance of this topic must be
underlined. With the fight against corruption being recuperated by Romanian
politicians on a nearly daily basis 2 , communication from the law enforcement
agencies (including DNA) on specific cases must be limited, carefull and balanced.
2 . And those who are most vocal in their support for this issue, are not doing the organisations
involved in anti-corruption, a great favour by making (political) statements about ongoing
investigations. Abstaining from comment on pending cases, out of respect for the judiciary
and the defendant, is still a rare virtue.
4. Under BM.3, title II. aims at “strengthening the anti-corruption legal
4.1. BM3.II.1 of the AP provides for the draft of “a study on the individualisation of
penalties applied by the courts for economical-financial offences, including corruption
and taking the appropriate measures if case may be.”.
4.2. With this aspect of the AP, the MOJ hopes to adress the concerns mentioned
in the EC-Progress Report of June 26, 2007, that the courts “fall short in
demonstrating that they understand their essential role in the efforts to curb
corruption in Romania”, which is indicated by the fact (amongst others) that “the
sentences applied by courts in corruption cases do not have a dissuasive effect and
fail to fulfill their preventive function.”, and more precisely, that the majority of prison
sentences for corruption are suspended sentences.
These observations in the EC-Progress Report – although factually correct –
received mixed reactions in Romania.
4.3. The Minister of Justice stated on several occasions to the Romanian media,
that sentences were so lenient because the quality of the evidence presented by the
prosecution was too low.
This is a remarkable statement indeed. One would hope that, in applying justice as it
should be applied, evidence is either sufficient, in which case the defendant can be
convicted, or it is not, in which case the defendant must be acquited. Convicting the
defendant “a little bit” because the evidence is not really convincing, is a rather
frightening approach to the rule of law, and in any case in complete contradiction with
the basic principles of a fair trial. Hopefully the Minister of Justice is mistaken in this
respect, because if he is not, Romanian judiciary has far worse problems than lenient
sentencing in corruption cases.
4.4. The criticism of the Romanian judiciary, who saw these observations as an
infringement on their independance, was more understandable.
A judge tries individual cases within the limits set by penal law, and sentencing is
based upon the merits of each individual case and each individual defendant. This
approach is fundamental to the rule of law and the independence of the Judiciary,
and cannot be reconciled with judges willing to/having to take into account a kind of
unwritten “anti-corruption awareness”, or to adopt a dissuasive “anti-corruption
policy” which has no basis in law.
The right to adopt a general policy on the sentencing of certain types of crimes is
constitutionally attributed to the Nation (and not to the Judiciary), through it’s
democratically elected representatives, i.e. Parliament. If sentencing concerning
corruption is considered to be too lenient in general – an assumption which, given the
statistical evidence, seems to be correct – the solution to this problem must also be a
general one, with, for example, a legal clause limiting the possibility for the courts to
give suspended sentences in the case of corruption. This general, legal approach is
a perfectly acceptable and logical course of action thoughout the EU whenever
national parliaments want to impose stricter sentencing for certain types of crimes 3 .
Limiting suspension of sentences, or even imposing mandatory sentencing, is, in
fact, a legal instrument with which Romania can swiftly and efficiently make progress
against BM3, while at the same time demonstrating it’s determination to curb high
level corruption. However, in view of the present legislative initiatives of the
Romanian legislator (see further), it is very unlikely that mandatory sentencing for
corruption will be introduced in the near future.
4.5. In view of what is said above, it is doubtfull whether ordering a study “on the
individualisation of penalties applied by the courts for economical-financial offences,
including corruption and taking the appropriate measures if case may be.” will
change much to adress the problem of too lenient sentencing for corruption offences,
since real“appropriate measures” can only be taken by parliament.
This doesn’t imply, however, that the initiative of the AP is completely irrelevant for
BM3. A scientific study on the individualisation of penalties, and through that aspect,
on individual cases concerning corruption, can provide usefull criminological insights
on the background and typology of corruption as it occurs in Romania.
3 . See, for example, the many EU-states where stiffer, or even mandatory sentencing was
introduced concerning terrorism after 9/11 and/or the Madrid Bombings. Mandatory
sentencing has always been part of legal practice in many EU-states.
4.6. BM.3.II.2. aims at “ensuring the celerity of the criminal procedure in high level
corruption cases”, and will introduce an amendment of law 47/1992 on the
Constitutional Court (CC).
At present, Romanian Courts are obliged to refer procedural objections concerning
un-constitutionality, to the Constitutional Court, thus causing the suspension of a
great many trials, while, in reality, only in a very small number of cases the objection
of un-constitutionality is finally sustained.
The present amendment will give the Romanian judiciary the possibility, not the
obligation, of referring objections to the Constitutional Court (this is also how it works
in most other EU-countries that have a constitutional court).
As such, this (future) amendment can be a positive contribution to discourage
procedural maneuvering, by limiting the exception of constitutionality to those cases
where the court believes it to be really relevant.
It is however, too early to see this as progress under BM3, as this amendment has
already been pending for quite some time now, without being actually implemented
by parliamentary approval and promulgation.
It also remains to be seen how the judiciary will interpret this article and deal with the
greater responsibility it puts upon them : in that respect, the present amendment is
not very clear on the basis of which criterium the court can refuse to send an
objection of non-constitutionality to parliament 4 . Lack of clarity will undermine the
efficiency of this article.
5. Finally it should be pointed out that, whereas title II. of the AP aims at
“strengthening the anti-corruption legal framework”, the actual BM3 sub-benchmark
reads as follows “Ensure the legal and institutional stability of the anti-corruption
framework, in particular by maintaining the current nomination and revokation
procedures for the General Prosecutor of Romania, the Chief Prosecutor of the DNA,
and other leading positions in the general prosecutors office”.
4 . Is it when the objection seems to be prima facie unfounded, or will the court have to make a
preliminary substantive judgement on a constitutional issue?
The stability of the legal framework has been changed into ‘strengthening’ the legal
framework, which is something quite different.
This is not a coincidence.
5.1. It was communicated by the MOJ that the conspicious absence of this
subbenchmark from the AP, was explained by the fact that ensuring legal and
institutional stability of a legal framework does not require any specific action.
This, in itself, is correct and would be satisfying answer, were it not for the fact that
many indications point to the intention of the MOJ of dismantling at least part of the
legal anti-corruption framework, more precisely, the National Anti-Corruption
These indications are no great secret. Indeed, it would be difficult not to observe
them. When the MOJ tried to dismiss one of the heads of section within DNA
(between May and October, 2007), the Minister of Justice did not confine his
comments to the specific case of the prosecutor in question, but repeatedly and
severely critised the DNA as a whole. It seems that, in the course of October 2007, a
General Emergency Ordinance (GEO) was in the making to merge DNA with DIICOT
(a section within the General Prosecution at the HCCJ), which, practically, amounts
to the dismantlement of DNA and the replacement of it’s chief prosecutors. As
recently as November 20 th , 2007, the Minister of Justice made this intention clear in a
public statement, adding that the EC was hampering the fight against corruption
because they opposed this step 5 .
It is clear, therefore, that Romania simply does not accept the complete content of
BM3 as applied by the EC under the Cooperation and Verification Mechanism.
5.2. In view of this, it is useful to be reminded of the background of this aspect of
the BM, namely the necessity for maintaining stability in the legal and institutional
framework concerning the anti-corruption effort, including (and especially) DNA.
The idea of a separate and (more or less) independant law enforcement agency
(unifying specialised prosecutors and police in one institution) to fight mid- and high-
5 . The Minister later said that he had been wrongly quoted by Reuters.
level corruption, was an initiative taken by Romania in 2002, in view of the general
perception, in Romania itself as well as outside the country, that corruption was
reaching an alarmingly high level.
This separate law enforcement agency was created in 2002, became operational in
2003, at that time under the name of PNA, and was strongly supported by several
projects under the Phare-programme. In 2004, the legal framework of PNA was
amended by GEO 24/2004, clarifying the position of the PNA vis-à-vis the public
prosecution in general (and the General Prosecution at the HCCJ in particular) and
the procedural competence of the PNA. By GEO 134/2005, PNA was transformed
into DNA (Directia Nationala Anticoruptie) and formally put under the umbrella of the
General Prosecution at the HCCJ, in order to conform to a decision by the
Constitutional Court that only the Prosecutor General at the HCCJ (and not the PNA)
could start investigations against members of parliament.
5.3. The creation of a separate body to investigate and prosecute files on high
level corruption, has always been presented (from 2002 until Accession) by Romania
to the EC, and the EU-member states, as Romania’s great achievement in the fight
against corruption – a phenomenon that was seen as one’s of Romania’s major
stumbling blocks on it’s way to Accession.
This achievement was reflected in the EC pre-Accession reports, the establishment
of PNA (later DNA) was encouraged by the EC, and it’s activities and logistics were
strongly supported on the EC-budget.
5.4. During the first few years of it’s existence, PNA concentrated on investigating
low – and (at the most) midlevel corruption cases, largely ignoring indications of
highlevel corruption (which were widely discussed everywhere in Romania at that
time, except, it seemed, in the offices of PNA). This attitude gave the PNA the
reputation, in the eyes of the Romanian public, of being a mere exercise in public
relations in order to give the impression that high-level corruption was being
adressed in an adequate manner.
This criticism was echoed in several EC pre-Accession reports.
5.5. It is only since the beginning of 2006, that DNA has started to show a real
track-record in the fight against corruption, by finally starting to investigate cases and
scandals that everybody in Romania was talking about, but no law enforcement
agency had bothered (or dared) to investigate. In this way files were opened against
several prominent policians, including ministers, ex-ministers, and members of
Again Romania held up this (new) effort of DNA to the EC and the member states as
an illustration of it’s determination to eradicate high-level corruption and to provide –
as was demanded by the EC – a stable legal framework in this field. These
achievements were, as before, reflected in the last pre-Accession report of the EC.
5.6. It is against this background that the present intentions of the MOJ (and the
Romanian Government in general) to dismantle the DNA should be viewed.
Year after year, from 2002 to the eve of Accession in 2006, the DNA was held up by
Romania to the EC (and EU-member states) as the country’s shining example of it’s
determination and seriousness in fighting high-level corruption. Hardly has the ink on
the Accession Treaty dried up, or attempts are made to dismantle and disarm this
That this should happen at a moment that investigations concerning high-level
corruption are finally yielding some (tentative) results, is no coincidence.
It is also, unfortunately, no surprise. The Peer Review expert-reports from 2004 to
2006 all pointed to the fragile nature of Romania’s anti-corruption effort, depending
too much on the drive of individual Romanian politicians, and EU-pressure. The Peer
Review expert report of March 2006 stated “that the fight against corruption is fragile
and sustained, to a much too large extent, by EU-pressure and the will and effort of
individual politicians and administrators. A minor change in the political climate would
suffice for the process to be discontinued, and for the initiative of the special law-
enforcement agencies to dry up.” 6 . As late as August 2006, the Peer Review expert
report on corruption stated that there was progress in the fight against corruption, but
that “the present situation is far from irreversible. Unfortunately, even minor
legislative swinging, changes in the Ministry of Justice’s and the DNA’s leading
positions, inadequate secundary legislation developments and/or insufficient
6 . Peer Review Romania, March 2006, expert report on corruption, present author.
provisions of means regarding recently created control institutions can seriously
endanger the fight against corruption. (...) EU should not permit that only isolated
authorities hold up the fight against corruption.” 7
This fragility of the anti-corruption effort was/is precisely why all expert reports, and
the EC pre-Accession reports, emphasized the need for post-Accession stability in
the institutions and the legal framework of the fight against corruption.
5.7. A de facto or de lege dismantlement of DNA, or discontinuity in it’s
operations, under the context of a “reorganisation” or “merger” in order to “improve
efficiency”, would be an enormous setback in the fight against corruption in Romania.
Not only would this cause severe disruption in the operations and continuity of the
anti-corruption effort, it would also undermine the very idea and philosophy behind
DNA : to have a visible, semi-independant, specialised law-enforcement agency
specifically adressing high level corruption (which is how DNA has always been
presented to the EC and the EU-member states).
Dismantlement of DNA as a separate organisation, would de facto imply that, with
one stroke of the pen, all financial support by the EC, that was specifically aimed at
maintaining DNA as a separate body, is rendered futile.
It would also send a very negative signal to the Romanian public in general, and one
should not doubt that to the judiciary in particular, the message that too much
efficiency in combatting highlevel corruption ends with being “reorganised”, will come
over loud and clear.
II. RECENT DEVELOPMENTS CONCERNING ANTI-CORRUPTION (ALL
6. In giving an update on progress under BM3, it is equally important to look at
developments outside the issues mentioned in the AP. Recently a number of
7 . Peer Review Romania, August 2006, expert report on corruption, by Emilio Jesus Sanchez
Ulled (special anti-corruption prosecutor at the Supreme Court of Justice of Catalonia/Spain)
important events took place that are specifically related to the issues adressed by
BM3 and the other BM’s.
7. The Romanian Constitutional Court recently decided that the rules of
procedural immunity apply to former ministers as well as ministers in office.
(background : ministerial immunity has to be lifted before a criminal investigation can
be started). This means that a criminal investigation concerning former ministers
must always be preceded by the procedure to lift his/her immunity.
This decision is not very logical. Procedural immunity for ministers derives it’s ratio
legis from the need to protect ministers in office against criminal investigations based
upon politically motivated complaints, and to avoid that political decision-making at
the highest level would be influenced in this way. Once a minister is no longer in
office, political decision-making can no longer be influenced in this manner, so there
is no longer any need for procedural immunity.
This is the way in which this system works in other EU-countries (see for example,
the investigations recently started against Jacques Chirac, once he stepped down as
President of France). Not so in Romania, clearly.
8. On October 4, 2007, the Government issued GEO 95/2007, drafted by the
MOJ, amending the procedure for lifting procedural immunity of ministers.
8.1. Background. Law nr. 115/1999 on lifting procedural immunity of ministers,
stated that immunity is lifted by the President, on request of the Prosecutor General
at the HCCJ (or the Chief Prosecutor of DNA), on the non-binding advice of a
committee of professionals especially established for this purpose. With GEO
95/2007, the Romanian Government has suddenly changed this procedure, by
replacing the existing advisory committee by another one, this time consisting of
judges. This GEO was adopted immediately after a request for removal of immunity
was adressed to the President of Romania concerning several ministers now in
office, including the Minister of Justice.
8.2. The MOJ has stated that the reason for this GEO was the necessity to have
an objective assessment by the committee advising the President. Objectivity is now
obtained, explains the MOJ, by appointing judges in this commitee, on proposal by
8.3. These arguments are not convincing, and are actually disputed by all parties
involved : the judiciary (including the HCCJ), the SCM, and the prosecution. Lifting
immunity is a political decision and a political responsability : the President refusing
to lift immunity will be held to account by Parliament and, finally, by the citizens in
their vote. Prosecuting and judging a minister on the basis of evidence obtained, is a
judicial responsability, to be performed by prosecutors and judges.
GEO 95/2007 mixes up these two completely separate issues, by appointing judges
to advise upon lifting immunity on the basis of preliminary and incomplete indications
of wrongdoing (since the actual investigation cannot yet have started legally). Any
advice of such a committee consisting of judges, will invariably be regarded as “a
judgement” by the general public and the defendant involved.
8.4. An appeal against GEO 95/2007 has been brought before the CC.
Whether or not the CC declares this GEO to be unconstitutional, the fact remains that
the previous committee advising the President on the lifting of immunity, can no
longer convene (even if GEO 95/2007 is declared unconstitutional), which will leave a
procedural void in all pending and future cases concerning the prosecution of high-
level corruption where elected officials are targetted.
The initiative of issuing GEO 95/2007 has, in all probability, fatally compromised the
pending cases initiated by the DNA, as these will now sink away into a procedural
quagmire about the implications of the CC’s decision, whatever this will be.
9. Not that this will make much of a difference, as it appears that all cases
concerning high-level corruption brought before the courts by the DNA (and other
prosecutor’s offices) have, over the last six months, been restituted by the courts to
9.1. Background. Technically, the restitution of cases to the prosecution implies
that the court does not give a judgement on the merits of the case, but sends the
case back to the prosecution in order to either start the procedure all over (in which
case the original evidence can still be used in the new procedure), or to start the
investigation all over (in these cases the original evidence can no longer be used). In
criminal procedures of French-Continental inspiration 8 , restitution implies a
preliminary judgement by the court, with which the case is sent back to the
prosecution, without discussing the merits of the case.
9.2. There has always been a strong impression that the procedural possibility to
restitute cases to the prosecution, was used by Romanian courts as handy
instrument to avoid having to make a substantive judgement in delicate cases,
especially corruption files.
This criticism was reflected in most Peer Review expert reports and EC-country
reports on Romania. One of the measures taken by Romania before Accession to
adress this problem, was a legal amendment limiting the possibility for the courts to
restitute cases to the prosecution “to finalise the investigation” (a favorite motivation
for restitution before Accession).
Apparently the Romanian legislator has underestimated the ingenuity of the judiciary
to find a way around obstacles put in the way of the possibility to restitute cases.
9.3. The restitution of basically all pending trials concerning highlevel corruption,
as has recently occurred in Romania 9 , is statistically impossible to attribute the
coincidental occurence of procedural mistakes in individual cases. Other factors than
legal-procedural considerations have clearly played a major role.
It should be considered as normal that restitution occurs in a certain percentage of
cases. This happens in all EU-member states where such a possibility for the court
exists. If, however, nearly all pending trials concerning high level corruption (and
especially all of the most delicate cases) are prematurely closed, without ever having
reached the stage of judgement on the substance, as happens in Romania today,
this leads to the conclusion that, at least when it comes to corruption cases, the
Romanian judiciary as a whole is (still) incapable of applying the rule of law in a
normal, independant, and professional manner.
8 . France, Romania, Spain, Belgium, Poland, Luxemburg, etc. In anglosaxon common law,
restitution could occur de facto, but it would generally coincide with a judgement on the
substance of the case, without a preliminary judgement.
9 . Specifics on individual cases will not be given here. They are well known, and these
restitutions have been widely commented upon in Romanian media. The fact that they have
been restituted is not contested.
Whether these restitutions can be legally justified or not, is, in fact, irrelevant, since in
both scenario’s the fact remains that the Romanian judiciary and/or legal system
appears to be unable to function properly when it comes to applying the rule of law
against highlevel corruption.
Indeed, more than five years after the start of Romania’s anti-corruption drive, the
Romanian public is still waiting for one single case of high level corruption to reach a
verdict in first instance.
It should be no surprise then, that Romania remains dangling at the bottom of every
corruption perception index, consistently showing the worst results in the EU.
9.4. Several structural aspects of Romanian penal procedure still facilitate an
exagerated use of restitution. A few examples :
- A re-trial after restitution, cannot be brought before the court that decided
about the restitution in the first place.
This obviously makes it even more tempting for a court to decide to restitute :
not only is substantial judgement on the merits of the case delayed, the court
will itself not have to deal with the retrial and is rid of the case forever. There
is no reasonable legal motivation for such a system. Since the decision to
restitute is a preliminary decision not touching on the merits of the case, it is
perfectly acceptable to have the same court judging, in a later phase, on the
substance of the case.
- decisions to restitute, are not immediately motivated. The court first decides
to restitute (materialising this decision in a very short judgement containing
only the decision itself), while written motivation follows later, in principle
within 30 days (although, in practice, it often takes longer).
This aspect of the Romanian procedure is technically illogical. The parties
(including the prosecution) can (since a few years) appeal against a decision
to restitute, but the time limit for appeal is shorter than the time limit the court
has to motivate the restitution. In other words, parties have to appeal against
a preliminary judgement, without knowing the motivation of the judgement.
- Romanian criminial procedure relies too much on absolute nullities as a
sanction for (perceived) procedural faults.
Legal background in brief. Nullity is a sanction for infringing on procedural
clauses. Technically, nullities are divided in absolute nullities, and relative
nullities. Absolute nullity is the strongest sanction and cannot be repaired, and
would normally be used in cases where an infringment of the criminal
procedure has caused fundamental damage to basic rights of the
citizen/defendant (simple example : house search without the necessary
judicial mandate – all information derived from such a search, can no longer
be used as evidence). Relative nullity sanctions infringements of the
procedure that have not caused fundamental damage to basic rights, and can
be repaired (simple example : absence of translation of some documents into
the language of the procedure – the nullity is repaired by translating the
documents during the trial, in order to give the defendant the possibility to
defend himself on the evidence they provide) 10 .
One of the important characteristics of Romanian criminal procedure, is the
constant use of absolute nullities, also concerning issues that have no relation
to (infringement upon) basic rights. New amendments to the penal procedure
(see further) will make an even more intensive use of this technique. For
example, evidence provided through an investigation conducted by a
prosecutor without material competence, will be sanctioned by absolute
nullity, whereas, from the point of a defendant, it doesn’t matter in the least
whether prosecution office A or prosecution office B is competent, as long as
they both respect his fundamental rights 11 .
Absolute nullities also tend to limit the responsibility of the court : the court is
not obliged to take into consideration any argument for repairing the situation,
. This is only a very brief introduction to the system. Technically, this issue is much more
. It is important to understand that in Romania, division of material competence between
prosecution offices is quite complicated, and can depend upon the amount of the damage
caused by the crime. For example : prosecutor A is competent for offences with a damage up
to 1000 EUR, while if the damage exceeds that amount, the investigation must be handled by
prosecutor B. Disputing this competence is (understandably) quite popular as a means of
defence in Romania, with all parties providing expert-reports to demonstrate that the amount
of damage is above or below the required limit. In fact, this division of material competence is
completely irrelevant with regard to respecting the basic rights of the defendant (which,
obviously, both prosecutors have to take into account).
ut simply throws out the whole case without judging on the merits of the
9.5. Furthermore, the recent cases of restitution concerning investigations into
high-level corruption, show elements that are peculiar even taking into account the
structural elements of the Romanian criminal procedure.
- files were restituted to the prosecution after hearings were held over a period
of many months or sometimes more than a year, while the objection that
caused the restition could have been raised at the first hearing. This is not
only inefficient, it also abnormal, even within the context of Romanian criminal
- in cases restituted by the HCCJ, it was unclear whether the restitution was
based upon absolute or relative nullity (making it unclear whether the original
evidence could be used again or not), while this should normally be a clear
- pending cases were restituted by the HCCJ on the basis of a decision of the
CC (concerning the immunity of former ministers), that would normally only
have an effect in the future, and not on pending trials.
- pending cases were restituted on meagre and disputable legal grounds,
giving the impression of a fundamental hesitation on the part of the judiciary
to adress the substance of the investigations concerning high level corruption;
9.6. These conclusions do not aim at criticizing the absence of convictions for
corruption, but the absence of judgements on the substance of the case and merits
of the evidence. Whether the result would be an acquital or a conviction, is, on the
short term, immaterial.
10. On October 23, 2007, the Romanian Parliament adopted (with a majority
approaching unanimity) a law, containing a series of amendments to the Code of
Criminal Procedure, and, to a lesser extent, to the Penal Code. These amendments
changed the original clauses of Government Emergency Ordinance no.60/2006 12 ,
adopted by the Government on September 6, 2006, and presented for approval to
Parliament (Senate and Chamber). The President of Romania has not yet
promulgated the law adopted by Parliament. Constitutionally, the President has the
right to refuse promulgation once, by sending the law back to Parliament. If
Parliament adopts the law a second time, Presidential promulgation is obligatory
within 10 days (Romanian Constitution, article 77).
10.1. The amendments adopted by Parliament contain a number of brand-new
procedural clauses of a most extraordinary nature.
- Article 91, §§ 10-12, concerning interception/taping of telephone
conversations during a criminal investigation, is changed, making it obligatory
for the suspect to be informed that he is subject of a criminal investigation,
before taking any measures to intercept his/her telecommunication; failure
conform to this article result in the nullity of the investigation;
(it my seem common sense that any interception of telecommunication will be
utterly useless if one informs the suspect on forehand that his/her
telecommunication will be intercepted ; not so, apparently, for the Romanian
- Article 91, § 2, now provides that all communication recorded without
observing the provisions of this article (see above) cannot be used as
(this amendment makes it impossible for a private citizen to use his own
taped telephone conversations as evidence of the crime of which he declares
to be a victim. This kind of evidence is typically used in, for example, inter-
family violence, stalking, etc. – in it’s enthousiasm for making interception of
telecommunication as difficult as possible, parliament wants to block the
future use of this kind of evidence)
12 . GEO 60/2006 aimed at changing certain aspects of the Code of Criminal Procedure, and
should not be confused with the stated intention, under the AP, of revising the whole Code of
Criminal Procedure. The latter is being done by a special commission that is still in the
process of drafting the new code.
- Article 100, concerning search warrants, is changed, making it obligatory to
officially ask the suspect to hand over the objects he/she is thought to have in
his/her possession, and making an official report thereon, before a search
warrant can be requested from the judge ; failure conform to this article
results in the nullity of the investigation;
(the amendments are more complicated than this, and are also confusing and
difficult to interpret ; given the tendency of the Romanian judiciary to interpret
procedural law as strictly as possible – this is not a criticism – the practical
result of this amendment amounts to what is described above ; needless to
say that it will not be very usefull to conduct a search in such circumstances)
- Article 117 makes an expertise with the purpose of ascertaining that evidence
was legally (sic) obtained, mandatory if one of the parties requests this;
(determining whether evidence is legally obtained or not, is a, attribution of
the judiciary everywhere else in the world. Experts are used to give scientific
advice to the court ; it is completely unheard of that they would determine the
legality of the evidence presented in court. Indeed, in that case, why not
simply replace the judges by experts? What sort of experts are supposed to
do this, is a complete mystery, not to mention the fact that this article will
cause enormous, endless delays in the administration of justice in Romania,
as one can expect the great majority of defendants to use this article)
- Article 171 will give the defendant a period of 24 hours to prepare his defence
in the case of the ex officio appointment of an attorny (i.e. when the defendant
does not have his own attorny). As another article states that the judicial
mandate for preventive arrest has to be given within 24 hours after depriving
a suspect of his liberty, the application of the new article 171 cannot be
reconciled with the time limits set for preventive arrest.
(the application of this article would practically make it impossible to use
preventive arrest in the case of a suspect who does not have his own attorny,
regardless of the crime he is suspected of);
- A new article 260 will determine the limit of any criminal investigation to 6
months, to be extended by the court only under specific circumstances, and
then again for a limited period of time.
(Such a strict limitation of the term of a criminal investigation is abnormal,
since most investigations would normally take more than six months. On a
theoretical level, the length of the investigation is normally limited by the
terms of prescription, and by the reasonable term within which a case is to be
brought to trial (art. 6 ECHR). Article 260 would introduce yet another
limitation, besides the two previously mentioned, artifically and unrealistically
set at six months. One also seriously doubts if Romanian police departments
have enough capacity to finalise every investigation within six months – did
Parliament, in voting these amendments, ever give a thought to that?).
- A new amendment to the Penal Code (article 146) would qualify a crime as
generating very serious consequences (on which qualification the length of
the prison sentence depends) only if it exceeds 30.000.000 ROL 13 , whereas
this amount is at present fixed on 200.000 EUR.
(This amendment will result in a drastic reduction of sentences for a whole
range of crimes, especially in the financial sphere, like corruption offences.
The intention of this amendment is, of course, obvious. The limit of
30.000.000 ROL is, in the Romanian context 14 , utterly ridiculous)
9.2. As EU-acquis, EC-treaties, other international legislation, or jurisprudence
from the ECHR, do not require such procedural guarantees, and legislation
comparable to the present amendments does not exist in any EU-member state,
these amendments are of exclusive Romanian design. One would, therefore, expect
the inspiration for them to have been found in specific problems encountered in
Romanian case-law concerning these issues. This however, appears not to be the
case, which leaves the origins of these amendments shrouded in mystery. Unless, of
13 . Approx. 8,3 MEUR.
14 . Where video footage was recently presented on television, showing a member of the
present government seemingly accepting a bribe consisting of a handfull of cash, and a
generous helping of plum-brandy...
course, the explanation is to be sought in the fact that a series of corruption
investigations are presently targetting members of parliament and other politicans.
9.3. It should be clear, however, that these amendments, if promulgated, will have
a disastrous effect upon Romanian law enforcement. It will no longer be possible to
use modern investigation techniques (considered elementary in any other EU-
member state), and, in fact, the efficiency of the criminal investigation in Romania will
be catapulted back to the 19 th century. This not only applies to corruption offences
(the main concern, apparently, of the Romanian parliament) but to all crimes. One
cannot help wondering how succesfull, for example, the Romanian participation in
the fight against terrorism will be, if suspects will have to be notified before their
phones can be tapped, and before their premisses can be searched. Indeed, these
amendments will, for all practical purposes, reduce to zero the efficiency of
Romanian international police co-operation on terrorism, trafficing of human beings,
protection of the EU’s financial interests, organised crime, etc.etc.
10. Apart from the amendments mentioned under nr. 9, several legal initatives
have already been implemented, recently, limiting the efficiency of the law
enforcement agencies, and other organisations, engaged (or supposed to be) in the
fight against corruption.
10.1. Government Ordinance 47 (August 28, 2007) abolished the possibility for the
prosecution to use technical evaluations by the fiscal administration on the extent of
the damage. Such evaluations would be of specific importance in investigations on
financial-economic crimes, including corruption. The abolishment of this possibility,
with immediate effect, and without providing for an alternative system to avoid the
delays this abolishment will cause 15 , has already proved to be detrimental in the fight
against financial-economic crime, including corruption.
10.2. Law 69/2007 (March 26, 2007) decriminalised certain aspects of bank fraud,
resulting in the immediate dismissal of numerous cases concerning corruption, either
under investigation or pending trial.
15 . Use will now have to made of other experts to make these evaluations, while the budget of
the Prosecution had not reckoned with the need to engage more experts for this.
10.3. Law 144/2007 (May 25, 2007) finally approved the legal framework for the
National Integrity Center (ANI) , but in a much watered-down version in comparison
to the original draft, making the ANI less efficient than originally presented.
At present, ANI is not yet operational. Only the vice-president has been elected. The
nominations for other members of the board are still pending, and the selection
process is intransparent. It is the intention that ANI will have twohundred employees,
although, without a management, the recruiting has yet to start. It is very doubtfull, in
this respect, if the deadlines set in the AP for the development of ANI’s activities will
Furthermore, the SCM has recently stated it regarded several aspects of the legal
framework of ANI as unconstitutional, more precisely where ANI would be allowed to
deduce conflicts of interests or incompatibilities concerning members of the judiciary.
It is therefore to be expected that the first ANI-case concerning a judge will lead to an
objection of unconstitutionality and a procedure before the CC.
Instead of progress in the fight against highlevel corruption, Romania is
presently regressing, on all fronts, in the fight against corruption.
Many of the measures that were presented, before Accession, to be
instrumental in the fight against corruption, have been deliberately blunted by
Parliament or the Government immediately after Accession, while other factors
have been instrumental in repulsing ongoing attempts to adress high level
The list is a long one :
- a number of the attributions of ANI, promissed before Accession, have
been cancelled by Parliament after Accession ; the NIA is still a very
long way from being operational, and it’s authority is already being
- several new laws, implemented immediately after Accession, have
reduced the efficiency of anti-corruption investigations;
- immediately after a request was made to start investigating members of
the present government, a GEO was adopted that has, in all probability,
fatally compromised all pending cases concerning high level
- new amendments, now pending in Parliament, will fatally affect the
efficiency of the Romanian criminal investigation, not only concerning
corruption, but concerning all crimes;
- prosecutors dealing with corruption crimes are put under severe
pressure in the media by, amongst others, the Minister of Justice, and
there are strong indications that the de facto dismantlement of DNA is in
- these previous aspects demonstrate the intense resistance of
practically the whole policital class of Romania against the anti-
- all major pending trials concerning high-level corruption, started just
before Accession and only after many years of hesitation, have now
been aborted and are, most probably, definitely abandonded for all
If the Romanian anti-corruption effort keeps evaporating at the present pace, in
an estimated six months time Romania will be back were it was in 2003.