Expert Report on the Fight

against Corruption / Cooperation and Verification

Mechanism

W. DE PAUW1

Bucharest, 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 : 2nd

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

Association).

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

be covered.

JHA-Assessment, November 2001 ; 3rd JHA-Assessment, April 2004 ; 1st 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 ; 2nd 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

framework”.

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 crimes3.

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 parliament4. 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

Directorate (DNA).

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 20th, 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 step5.

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

parliament.

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

organisation.

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

BENCHMARKS)

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

the SCM.

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

the prosecution.

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 Romania9, 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 rights11.

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,

10. This is only a very brief introduction to the system. Technically, this issue is much more complicated. 11. 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).

but simply throws out the whole case without judging on the merits of the

case.

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

procedure.

- 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

legal issue.

- 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.60/200612,

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

parliament).

- Article 91, § 2, now provides that all communication recorded without

observing the provisions of this article (see above) cannot be used as

evidence;

(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 ROL13, 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 context14, 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 19th 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 cause15, 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

be kept.

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.

III. CONCLUSION

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

corruption.

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

contested;

- 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

corruption;

- 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

store;

- these previous aspects demonstrate the intense resistance of

practically the whole policital class of Romania against the anti-

corruption effort;

- 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

practical purposes;

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.