Annexes to COM(2022)664 - Progress in Romania under the Cooperation and Verification Mechanism - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2022)664 - Progress in Romania under the Cooperation and Verification Mechanism. |
|---|---|
| document | COM(2022)664  |
| date | November 22, 2022 |
The revised legislative provisions concerning the functioning of the SCM include a number of obligations that can contribute to the transparency and accountability of the Council. The law maintains the possibility to recuse SCM members when judging disciplinary cases on grounds extended to conflicts of interest and impartiality. A clear deadline for replacing SCM members when their term expires is introduced. Finally, the assemblies maintain the possibility to recuse members of the SCM on grounds of non-fulfillment of duties.
In contrast to 2020 – when the SCM did not engage constructively on the draft justice laws published by the Ministry of Justice and did not issue an official opinion – in 2022 the Council has been able to adopt formal positions on key legislative projects. Although marred by controversy within the Council, with some members deploring the lack of consultation of the Courts and prosecution services, the plenum issued a positive opinion on the draft law for the dismantling of the Special Section for the Investigation of Offences in February 2022 81 . The Council also issued a positive opinion on the draft justice laws in August 2022 82 , while presenting suggestions for some amendments, and participated in the ensuing parliamentary debates with further proposals for amendments.
Since the last report, the activity of the SCM in defending the independence of the judiciary has continued to rely on the sections rather than the plenum 83 . Some members of the SCM have questioned the processes as unnecessarily lengthy and inconsistent in their conclusions.
As regards transparency and access to information, the Council has continued to publish relevant information on its website, and its plenary and sections meetings are broadcast. Information about disciplinary decisions is also available online.
The newly elected SCM starting its mandate in 2023 would need to ensure hat it takes forward transparency and accountability as key objectives in its programme. Holding regular open meetings and discussing the annual reports 84 with the assemblies of judges and prosecutors at all levels, as well as with civil society and professional organisations will be key to ensure the implementation of these objectives. The civil society forum in the area of justice established in December 2021 can make a major contribution in this respect.
Successive CVM reports have consistently underlined the need for the Superior Council of Magistracy to contribute to the momentum of reform, articulating clear collective positions and securing confidence through transparency and accountability. The importance of these objectives has been recognised by the Romanian government. The election of a new Council to start its mandate in 2023 provides an opportunity to ensure transparency and accountability, which could be demonstrated by the new Council in the form, for instance, of a public statement of governing principles, as well as in the sustained collective endorsement of key positions by the Council.
The Judicial Inspection
2018 CVM Recommendation: The Superior Council of Magistracy to appoint immediately an interim team for the management of the Judicial Inspection and within three months to appoint through a competition a new management team in the Inspection.
The 2021 CVM report concluded that structural concerns related to the Judicial Inspection remained to be addressed, including in the light of the May 2021 judgement of the European Court of Justice 85 . The 2022 Rule of Law report reiterated the concerns about the extensive powers and lack of accountability of the Chief Judicial Inspector. These concerns included the concentration of power in the hands of the Chief Inspector and his deputy, the high proportion of cases brought by the Inspection and eventually rejected in court, as well as the limits to the oversight by the SCM 86 . Questions were raised on whether the provisions in the justice laws for appointing the management of the Judicial Inspection and its accountability offer sufficient guarantees and achieve the right balance between judges, prosecutors and the SCM. A request for a preliminary ruling is pending before the CJEU on the question whether the extensive powers vested in the Chief Inspector are in line with the requirements of judicial independence 87 .
The law on the Superior Council of Magistracy adopted in October 2022 amended substantially the legislative framework related to the Judicial Inspection. It includes several provisions to remedy the lack of accountability of the Judicial Inspection and the concentration of power in the hands of the Chief Inspector. The powers of the Chief Inspector are balanced by a newly introduced Board, with a series of powers to ensure an adequate counterweight. Its role will cover decisions on the organisation and operation of the Judicial Inspection, the performance of inspection works and appointment competitions. The appointment of the deputy Chief Inspector passes from the hands of the Chief Inspector to the SCM plenum, based on more objective criteria. Similarly, the judicial inspectors will be appointed by the Chief Inspector on the basis of a competition organised by the relevant SCM section with the support of the National Institute of Magistracy. This competition was previously run by the Judicial Inspection itself. The rules on the organisation of the competitions were clarified, including as regards the selection criteria and the composition of the selection panels. New rules have been introduced to regulate any situations of conflict of interests faced by a Chief Inspector, who will also now be required to propose the composition of the monitoring teams to the management board (instead of the Chief Inspector deciding directly). A remaining concern relates to the possibility for the Chief Inspector to overrule a decision to dismiss a case, or any decision taken by an inspector following a preliminary investigation. The application of this rule in practice and the effectiveness of the existing safeguards 88 will need to be monitored.
In the past, the selection and appointment of the Chief Inspector raised controversy, as detailed by the 2021 CVM report. The appointment of the new head of the Judicial Inspection in July 2022 appears to have been more straightforward, even though only one candidate applied. The new legislation also covers the appointment of the Chief and Deputy Chief Inspectors, giving stronger oversight powers to the SCM and involving the National Institute of Magistracy in the competitions for entering the Judicial Inspection. The revocation procedure for the Chief Inspector has also been altered, from a requirement for a decision from the full SCM plenary to initiation by five SCM members or by the General Assembly of the Judicial Inspection. The resulting balance between considerations of independence, accountability and stability in the leadership of the Judicial Inspection will need to continue to be monitored in practice.
In 2021 and 2022 the number of disciplinary actions registered by the Superior Council of Magistracy has remained broadly stable 89 . However, there remain cases where disciplinary investigations and resulting sanctions imposed on magistrates appear to have been linked to the voicing of critical opinions on rule of law issues. Such investigations have been opened by the Judicial Inspection either ex officio or at the request of the SCM 90 . The CJEU has made clear that judicial independence could be undermined if the disciplinary regime is diverted from its legitimate purposes and used to exert political control over judicial decisions or pressure on judges 91 . In addition to the cases mentioned in the Rule of Law report 2022, other disciplinary investigations against judges were perceived as a form of pressure and retaliation for sentences given, notably in high-level corruption-related cases 92 .
Although public information regarding disciplinary cases at the Judicial Inspection was lacking for the past three years 93 , predictability and transparency has been increased through the decision of the SCM to publish, in anonymised format, disciplinary decisions that have become final and breaches of the code of ethics on a portal accessible to magistrates only.
This 2018 recommendation has become obsolete. The new leadership of the Judicial Inspection has now the opportunity to ensure disciplinary investigations are no longer used as an instrument to exert pressure on the activity of judges and prosecutors, in line with the case-law of the CJEU. The Commission will continue to look at the operation in practice in the framework of the Rule of Law Reports.
On the basis of the analysis of Benchmark One, overall the recommendations can be considered satisfactorily fulfilled, and monitoring can continue under the annual Rule of Law Report cycle. The Commission welcomes the Romanian government’s commitments to continue the path of reform by taking the utmost account of Venice Commission recommendations and completing the process of adopting new criminal codes. Romania has been fully committed to working together with the Commission on the annual Rule of Law Report cycle. This monitoring framework has already started to follow in detail many of the issues explored under the CVM, such as the regime succeeding the Section for the Investigation of Offences in the Judiciary and the functioning of the Judicial Inspection, as well as the broader legislative framework of the Justice Laws and the Criminal Codes and the work of the Superior Council of Magistracy. Commitments under the Recovery and Resilience Facility and further opportunities for assistance under other relevant EU programmes, in particular the Technical Support Instrument, can help with continuing the implementation of relevant reforms.
2.2 Benchmark Two: Integrity framework and the National Integrity Agency
The 2021 CVM report concluded that the risk of backtracking identified in 2019, linked to modifications to the rules on integrity, had been mitigated and that there were encouraging signs that the new legislature could set a clear path towards the sustainability of the National Integrity Agency (ANI) and the legislative framework on integrity.
ANI continues to investigate incompatibilities, conflicts of interest and unjustified wealth, maintaining a steady track record 94 . As set out in the 2022 Rule of Law Report, ANI has seen a number of positive developments. After more than one year and a half without a President, at the proposal of the National Integrity Council, a new ANI President was appointed in 2021 95 .
The fact that asset and interest declarations must be filled electronically and are publicly available online since 2022 increased transparency and facilitated ANI’s work 96 . As well as training sessions, ANI launched "e-DAI Assistant" in May 2022, a chatbot helping people to use the platform effectively. ANI has also been developing its own tools to identify by itself suspicious declarations of assets and interests, on the basis of risk indicators, and intends to work more closely with the National Agency for the Management of Seized Assets (ANABI) 97 .
CVM reports have noted that the effectiveness of ANI has been constrained by the need to modernise and further improve the clarity of the legal framework for integrity, putting it on a stable and sustainable basis. In its national Recovery and Resilience Plan, Romania committed to have a consolidated law on integrity in force by 2024 98 . ANI is working with the Ministry of Justice and other partners to carry this work forward, expecting to finalise it by mid-2023 99 . A consolidation of the laws on integrity, incompatibilities and conflicts of interest would allow case-law and corruption prevention policies to be taken into account and provide a stable basis for the future.
ANI continues to work effectively and to take steps to improve its governance, tools and methods. Work is well under way to prepare a comprehensive legislative framework on integrity to be adopted in 2023 and this is an opportunity to further support ANI’s work and bring the clarity and stability needed to effectively detect and address incompatibilities, conflicts of interest and unjustified wealth. The new legislation falls under Romania’s Recovery and Resilience Plan and its practical implementation is within the scope of Commission monitoring under the Rule of Law Reports.
The PREVENT system
2017 Recommendation: Ensure the entry into operation of the PREVENT system. The National Integrity Agency and the National Public Procurement Agency should put in place reporting on the ex-ante checks of public procurement procedures and their follow-up, including ex post checks, as well as on cases of conflicts of interest or corruption discovered, and the organisation of public debates so that the government, local authorities, the judiciary and civil society are invited to respond.
Since 2017, the PREVENT system has been working to avert conflicts of interests in public procurement procedures by setting up an ex-ante verification mechanism. This helps contracting authorities to remedy possible problems before the contract is awarded.
The 2021 CVM report confirmed PREVENT’s positive results, and its continued effectiveness has been confirmed by ANI. Between 1 June 2021 and end-September 2022, almost 20 000 procurement procedures were reviewed by the PREVENT system with a view to identifying possible conflicts of interest, including over 3 700 dealing with EU funds. These involved over 2 600 contracting authorities, and almost 16 000 companies. Integrity inspectors issued 24 integrity warnings, covering procedures equating €97 million. In all cases notified by the system, the contracting authorities removed the causes that generated potential conflicts of interest: there were two cases where the National Agency for Public Procurement was notified of a potential irregularity. This track record confirms the conclusion of the 2021 CVM report that this recommendation is fulfilled.
The recommendation on the PREVENT system was already fulfilled in 2018 and its continued positive results illustrates its sustainability.
Follow-up of court decisions concerning Members of the Parliament
2017 Recommendation: The Parliament should be transparent in its decision-making with regard to the follow-up to final and irrevocable decisions on incompatibilities, conflicts of interests and unjustified wealth against its members.
Previous CVM reports pointed at delays and apparent inconsistencies in the application of sanctions against Members of Parliament found by a final court decision to hold incompatible functions or to have a conflict of interest following a report from ANI. They highlighted a possible divergent interpretation of the rules, in particular when the integrity incident occurred in a previous mandate or position, and suggested more clarity. In 2020 and 2021, the High Court of Cassation and Justice clarified the interpretation of the laws. The Court ruled that the sanction applies even if the incompatibility concerns a previous mandate, and that a limitation period of three years should refer to the need for ANI to finalise an investigation within three years of the facts that determine the existence of a state of conflict of interest or incompatibility (rather than the sanction not applying after three years) 100 .
Since 2021, there has been one case, where ANI found that one Senator held incompatible functions. This led to the prompt resignation of the person concerned from public function, despite a challenge to ANI’s decision being brought before the Court. There were no cases which would have tested the Parliament’s transparency in its decision-making with regard to final court decisions.
The positive assessment in the 2021 CVM report based on the proactive cooperation seen at the start of the new Parliament is confirmed and this recommendation can therefore be considered fulfilled. The Commission will continue to monitor the follow-up given by the Parliament to irrevocable decisions on incompatibilities, conflicts of interests and unjustified wealth against its members, under the Rule of Law Reports.
On the basis of the analysis of Benchmark Two, all recommendations can be considered satisfactorily fulfilled. The Commission will continue to look at developments related to the integrity framework and its implementation in the Rule of Law reports. The consolidation of the legal framework for integrity is also a milestone in Romania’s Recovery and Resilience Plan 101 .
2.3 Benchmark Three: Tackling High-level Corruption
The National Anti-Corruption Directorate and the fight against high-level corruption
Corruption was a primary area of concern that the positive assessment reached in respect of Benchmark Three in January 2017 had been put into question by Romania. However, the 2021 report was able to mark an improvement, with a new impetus and institutional stability at the National Anti-Corruption Directorate (DNA). The positive trend in the effectiveness of the investigation and sanctioning of corruption was confirmed in the 2022 Rule of Law report.
Since the last CVM report and until the end of October 2022, the DNA sent 451 cases of high-level corruption to trial, concerning a total of 1 067 defendants. These included sitting or former ministers, deputies, senators, or persons holding high-level political or public office in the local administration. In the same period, the Courts decided on the final conviction of 564 defendants in cases prosecuted by the DNA and ordered the confiscation of assets amounting to a value of almost €24 million. State entities became entitled to recover over €43 million in prejudice in DNA cases following final court decisions. These results confirm the positive trend noted in 2021.
Nevertheless, operational challenges remain for the work against high-level corruption. Recruitment has proved challenging, although some improvement is noted on the DNA’s occupancy rate of prosecutors that has now reached 78%, according to the data provided to the Commission. The high seniority requirement had been identified as a major reason for the limited number of applications to fill in the existing vacancies 102 . However, since the Constitutional Court declared unconstitutional a law decreasing the seniority requirement to seven years 103 , the seniority requirement for appointment in DNA has not been changed in the revised justice laws, and a ten-year requirement is in place, as well as three years of mandatory training in the National Institute of Magistracy 104 . Given the shortage of prosecutors in the DNA, delegation, secondment and transfer remain important tools 105 . The modifications brought about by the new justice laws regarding the recruitment procedure of regular prosecutors at the DNA, which has been transferred from the Superior Council of Magistracy to the DNA, are also seen to be helping to reach this objective. Addressing the operational challenges of the DNA, including as regards recruitment of prosecutors, is a recommendation in the 2022 Rule of Law Report and Romania’s Recovery and Resilience Plan includes a commitment to increase the occupancy rate of the DNA to 85% by 30 June 2023 106 .
The dismantling of the SIIJ (see also Benchmark One) is of particular relevance to the work to combat high-level corruption. The CJEU noted that in the case of the SIIJ, the lack of expertise to conduct investigations into complex corruption cases, insufficient human resources and heavy workload could all risk delays and reduced effectiveness in dealing with cases 107 . The DNA has not regained the competence to investigate corruption in the judiciary, although the Venice Commission 108 and the Prosecutor General 109 have both expressed the view that it is unlikely that the new structure would be better placed to conduct investigations into allegations of corruption by judges and prosecutors than a specialised prosecution service like the DNA. With only a few months since the SIIJ was dismantled, it is too early to assess whether the new structure can effectively prosecute corruption offences in the judiciary 110 . One other important concern with the SIIJ was the lack of clarity in the attribution of cases between DNA and the SIIJ, and in particular the transfer of entire corruption files away from DNA, as soon as a judge or prosecutor was involved. The new law aims to limit joined cases to only those where “for reasons of good conduct of the prosecution, the case cannot be disjoined” 111 . If properly implemented, this could help to prevent the disruption to anti-corruption investigations seen in the past 112 . So far, no incidents have been reported and no cases were registered where the arbitration on competence with the DNA was needed. The 2022 Rule of Law Report included a recommendation highlighting the impact of the new system on investigating and prosecuting corruption offences in the judiciary.
The protracted revision process of the criminal codes (see Benchmark One) has impacted on the fight against corruption. Two Constitutional Court decisions had the consequence of terminating criminal procedures in corruption cases against national politicians, by rendering null and void court judgments based on the question of the composition of the court panels 113 . At the same time, following a CJEU judgment 114 , in April 2022 the HCCJ upheld prison sentences in a high-profile case from 2018, which had been suspended on the grounds of unlawful court composition 115 . In May 2022, the HCCJ ruled in another high-profile case, implementing the abovementioned CJEU judgement to disregard the case-law of the Constitutional Court on the legality of the composition of judges’ panels, and sentenced the main defendant to imprisonment for bribery 116 .
As set out above, the lack of a legislative response to the Constitutional Court ruling on the statute of limitation has had a major impact on ongoing cases. This is particularly true in the case of corruption cases 117 . According to an estimate published by the DNA, a total of 557 criminal cases under criminal prosecution or pending before the courts could consequently be terminated 118 . While the exact prejudice would need to be assessed case by case, the DNA estimates damage in these cases to around €1.2 billion and the total amount of bribery and influence peddling at around €150 million. Although civil law avenues for recovering some of the prejudice remain, the discontinuation of criminal proceedings in such a high number of corruption cases may have a significant impact on efforts to combat high-level corruption and its actual consequences and possible mitigating actions will be monitored closely by the Commission, also in the light of the CJEU’s ruling that EU law precludes the application of national rules or a national practice similar to the case-law of the Constitutional Court if it is capable of giving rise to a systemic risk of impunity for corruption offences or acts of fraud affecting the financial interests of the Union 119 . The risk that thousands of defendants would not face criminal liability has triggered major criticism in Romania.
Recurring changes on the composition of panels seating in criminal cases have been reported since the last CVM report of 2021. Consequently, where an appeal panel is composed of two judges and a judge is replaced, the entire panel is dismissed and the whole process of administrating evidence must restart. This creates a critical situation for cases that will become time-barred early 2023. The Prosecutor General has advanced the idea to reserve judges in order to prevent the dissolution of the panel.
The positive track record in the effectiveness of the investigation and sanctioning of high-level corruption has continued through 2021 and 2022. It will be important to ensure that this effectiveness can be maintained sustainably (see also Benchmark One), including through the stabilisation of an appropriate criminal legal framework and of the relevant provisions in the justice laws. The overall framework, and how Romania will continue to address the operational challenges facing the National Anti-Corruption Directorate, essential for maintaining the sustainability of continued progress, will be followed closely within the scope of Commission monitoring under the Rule of Law report.
Lifting of immunity of Members of Parliament
2017 CVM Recommendation: Adopt objective criteria for deciding on and motivating lifting of immunity of Members of Parliament to help ensure that immunity is not used to avoid investigation and prosecution of corruption crimes. The government could also consider modifying the law to limit immunity of ministers to time in office. These steps could be assisted by the Venice Commission and GRECO. The Parliament should set up a system to report regularly on decisions taken by its Chambers on requests for lifting immunities and could organise a public debate so that the Superior Council of Magistracy and civil society can respond.
This recommendation concerns the accountability of the Parliament in its decisions on requests from the prosecution to authorise preventive measures, such as searches or arrests, and on requests to authorise the investigation of a Member of Parliament when he/she is or has also been a Minister. In the past, the lack of reasoning of decisions taken by the Parliament – as well as the number of occasions when Parliament did not allow investigation to proceed – led to concerns about the objectivity of these decisions.
The 2021 CVM report concluded that the approach in Parliament has evolved in a positive direction 120 and this has continued. There have been only two cases of demands for lifting of immunity by DNA since the last CVM report, both swiftly approved by Parliament 121 . In addition, on 7 November 2022, the Senate modified its rules of procedure to introduce defined objective criteria to decide on requests for lifting parliamentary immunities, on the lines already in place in the Chamber of Deputies 122 . Abiding by the rules in place will be important for ensuring that the current approach is maintained.
The accountability of Parliament in its decisions on requests from the prosecution to authorise preventive measures and on requests to authorise the investigation of Members of Parliament has also been an important area of monitoring under the CVM. The 2021 CVM Report concluded that the approach in Parliament had evolved positively, and the recent decision of the Senate to introduce defined objective criteria to decide on requests for lifting parliamentary immunities mean that both chambers have important transparency safeguards in place on a permanent footing. The Commission will continue to follow the developments in the context of the monitoring under the annual Rule of Law Report.
The situation in respect of Benchmark Three has maintained a positive momentum since 2021. On the basis of the analysis, the recommendations can be considered satisfactorily fulfilled. It will be important to maintain this positive track record. As for other Member States, the Rule of Law report monitors the way Romania continues to address remaining and new challenges in the fight against high-level corruption and the implementation of its recommendations.
2.4. Benchmark Four: Tackling corruption at all levels
Since the June 2021 CVM report, the General Prosecution Office has continued the effective prosecution of corruption and corruption-assimilated offences 123 . However, the shortage of human resources in the judiciary 124 and limited technical means for special investigation techniques available to the Public Ministry impact the investigations in its competence. The General Anti-Corruption Directorate (DGA) inside the Ministry of Interior continued to carry out its work in good cooperation with the Prosecution.
National Anti-Corruption Strategy
2017 Recommendation: Continue to implement the National Anti-corruption Strategy, respecting the deadlines set by the government in August 2016. The Minister of Justice should put in place a reporting system on the effective implementation of the National Anti-corruption Strategy (including statistics on integrity incidents in public administration, details of disciplinary procedures and sanctions and information on the structural measures applied in vulnerable areas).
The 2021 CVM report concluded that further work was needed on the national Anti-Corruption Strategy to ensure an effective implementation and step up the prevention and fighting of corruption in vulnerable areas and at local level.
A new National Anti-Corruption Strategy for 2021-2025 was approved by the Government in December 2021 125 . Its preparation was informed by an internal evaluation and an external audit performed by the OECD. The OECD evaluation acknowledged the significant steps that Romania took towards strengthening its anti-corruption and integrity policies, while also noting that the lack of political support to implement important legislative reforms was an important challenge 126 .
The implementation of the 2021-2025 strategy is on track. Work focuses on the defined priority areas and a peer review process of the participating institutions will kick off in December. A mid-term report on the implementation of the strategy is foreseen in the first trimester of 2023.
Efforts are under way to ensure the effective implementation of the 2021-2025 anti-corruption strategy. Evaluation and reporting mechanisms are being set-up. This recommendation can be considered fulfilled. The Commission will continue to monitor the implementation of the strategy under the Rule of Law Report.
National Agency for the Management of Seized Assets
2017 Recommendation: Ensure that the National Agency for the Management of Seized Assets is fully and effectively operational so that it can issue a first annual report with reliable statistical information on confiscation of criminal assets. The Agency should put in place a system to report regularly on development of administrative capacity, results in confiscation and managing criminal assets.
The mission of the National Agency for the Management of Seized Assets (ANABI) is to ensure an effective execution rate of the confiscation orders issued in criminal matters through an efficient management of seized assets that are distributed to the Agency by prosecutors and judges.
In 2022 ANABI entered its sixth year of activity, and it is functioning effectively, implementing a National Strategy for Strengthening the Asset Recovery System for 2021-2025. ANABI’s mandate has been extended in July 127 and the Agency is working on increasing the capacity to trace assets both nationally and internationally, enhance cooperation mechanisms, and provide new tools for financial investigations by police and prosecutors. The implementation of the new legislative framework is ongoing, including as regards additional funds allocated to the Agency. The new law also provides for a fund for crime prevention and victim protection, a point repeatedly flagged by civil society. ANABI seized over €60 million in 2022 compared to almost €57 million in 2021. It manages over 140 mobile assets with a total value of almost €5.5 million 128 .
The 2021 CVM report concluded that this recommendation was fulfilled. This can be confirmed.
On the basis of the analysis of Benchmark Four, all recommendations can be considered fulfilled. The Commission will continue to monitor the fight against corruption at all levels in the Rule of Law Reports.
3. CONCLUSION
The Decision to establish the CVM in 2006 was an inherent part of Romania’s accession process. It offered a way to address remaining issues where further progress was still necessary to ensure the capacity of the judicial system and law enforcement bodies to implement and apply the measures adopted to establish the internal market and the area of freedom, security, and justice 129 .
Since then, the CVM has offered a framework for cooperation and monitoring to accompany the reform process set out under the benchmarks. This entered a final phase when the positive stocktaking of January 2017 led to the twelve key recommendations. Though this phase was prolonged by the need to address the eight additional recommendations of November 2018, more recently Romania has worked consistently on the implementation of these recommendations, as acknowledged in the June 2021 report. The conclusions of this report have been able to mark major progress in the legal and institutional framework to address long-standing CVM recommendations.
The evolution of the EU’s rule of law landscape has given a new context for the Commission’s cooperation with Romania. In particular, the annual Rule of Law Report cycle now provides an ongoing framework which allows a long-term perspective to accompany sustainable reform, with Romania as with other Member States.
The annual Rule of Law Report cycle will enable the implementation phase of many of the agreed reforms to continue to be monitored in practice. Issues such as the new regime following the dismantling of the Section for the Investigation of Offences in the Judiciary, the functioning of the Judicial Inspection, human resources in the judiciary, the implementation of court decisions by public administration, the impact of the upcoming revision of criminal legislation on the effectiveness of the fight against corruption, and the evolution of the integrity framework and its application, including by Parliament, can continue to be followed-up in this way. This will be part of the monitoring of the justice system and anti-corruption as two of the core pillars of the reports. This is in line with the Romanian government’s commitment to consolidate, in an irreversible manner, the progress achieved so far in guaranteeing the independence of justice and its efficiency, as well as the track record in combatting corruption.
The Romanian authorities have also made clear that a number of immediate issues will be followed up as required in the coming months. Romania has committed to further analyse and take the utmost account of the opinions of the Venice Commission, on the justice laws and more generally if further actions are necessary. It has also committed to complete the revision of the Criminal Code and Criminal Procedure Code, to ensure alignment with the decisions that the Constitutional Court of Romania has taken since 2016. Completing the revision of the two Codes is also part of the commitments undertaken by Romania in its Recovery and Resilience Plan to be adopted by the end of 2022, and the Commission will assess closely the revised codes in accordance with the specific procedures envisaged in that context. A final immediate issue will be the ability of the incoming Superior Council of the Magistracy to contribute to the momentum of the reform, and the Romanian government expressed its confidence in the ability of this Council to give a new impetus to transparency and accountability.
Romania has already shown its strong commitment to work under the annual Rule of Law Report cycle and it continues to cooperate constructively in that framework. In parallel, Romania’s Recovery and Resilience Plan has also allowed the setting of specific milestones for progress.
The Commission is confident that now with the key final steps being in place, the cooperation and monitoring of the justice system and anti-corruption policies in Romania can be taken forward under the Rule of Law Report and other established parts of the rule of law toolbox applying to all Member States. Recommendations under the Rule of Law Reports are already in place to that effect, as well as programmes under the Technical Support Instrument to support the process of reform.
The Commission considers that the progress made by Romania under the CVM is sufficient to meet Romania’s commitments made at the time of its accession to the EU.
It is important that Romania continues to work consistently on translating the remaining commitments specified in this report into concrete legislation and on continued implementation, within the annual Rule of Law Report cycle and with the support of other parts of the EU rule of law toolbox.
The Commission will take duly into account the observations of the Council, as well as of the European Parliament 130 before taking a final decision on Romania in accordance with the CVM decision.
Annex: Benchmarks under the CVM Decision
Benchmarks to be addressed by Romania pursuant to Commission Decision of 13/XII/2006 establishing a mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption:
Benchmark 1: Ensure a more transparent and efficient judicial process notably by enhancing the capacity and accountability of the Superior Council of Magistracy. Report and monitor the impact of the new civil and penal procedures codes
Benchmark 2: Establish, as foreseen, an integrity agency with responsibilities for verifying assets, incompatibilities and potential conflicts of interest, and for issuing mandatory decisions on the basis of which dissuasive sanctions can be taken
Benchmark 3: Building on progress already made, continue to conduct professional, non- partisan investigations into allegations of high- level corruption
Benchmark 4: Take further measures to prevent and fight against corruption, in particular within the local government
(1)
Following the conclusions of the Council of Ministers, 17 October 2006 (13339/06), the Mechanism was established by Commission Decision of 13 December 2006 (C(2006) 6569).
(2)
Judgment of the Court of Justice of 18 May 2021 in Joined Cases C-83/19, C-127/19, C-195/19, C-294/19, C-355/19 and C-379/19 Asociaţia ‘Forumul Judecătorilor Din România’ and Others, para 164.
(3) The benchmarks for Romania deal with the effectiveness and transparency of the judicial system, key institutions in areas like integrity and the fight against corruption at all levels, and corruption prevention.
(4)
COM(2017) 44.
(5)
COM(2017) 751; COM(2018) 851; COM(2019) 499.
(6)
European Parliament non-legislative resolution on the rule of law in Romania of 13 November 2018, P8_TA-PROV(2018)0446. Council Conclusions of 12 December 2018 https://ec.europa.eu/info/sites/info/files/2018-st15187_en.pdf
(7)
COM(2021) 370.
(8)
Another instrument that has been put in place since the 2018 CVM Report is the rule of law conditionality regime Regulation for the protection of the EU budget (Regulation 2020/2092, OJ L 433I, 22.12.2020, p.1-10).
(9)
The Commission has adopted three Rule of Law reports so far: COM(2020) 580; COM(2021) 700; and COM(2022) 500. They included specific chapters on Romania: SWD(2020) 322; SWD(2021) 724; SWD(2022) 523.
(10)
COM(2022) 500, Annex and Country Chapter on the rule of law situation in Romania.
(11)
Council Implementing Decision 12319/21, of 3 November 2021. Specific milestones are referenced in the text.
(12) The fulfilment of these milestones will be assessed under the dedicated procedure in the light of the criteria foreseen in Romania’s Recovery and Resilience Plan.
(13)
The Commission services organised a fact-finding mission in November 2022. Online meetings included the Minister of Justice, Members of the Romanian Parliament, the Superior Council of Magistracy, the High Court of Cassation and Justice, the Prosecutor General, the National Anti-Corruption Directorate, the National Integrity Agency, the national Agency for the Management of seized assets (ANABI), civil society organisations and judicial associations.
(14)
The full benchmarks of the original CVM Decision can be found in Annex.
(15)
Law 207/2018 amending Law 304/2004 on the judicial organisation; Law 234/2018 for amending Law no. 317/2004 on the Superior Council of Magistracy; Law 242/2018 amending Law no. 303/2004 on the statute of judges and prosecutors. The laws were further modified through Government Emergency Ordinances in 2018 and 2019.
(16)
For example, appointment rules for the High Court of Cassation and Justice and the Judicial Inspection. See details in the 2019 CVM Report COM(2019) 499.
(17)
For details of the developments between September 2020 and June 2022, see the 2021 CVM Report and the country chapter on Romania in the 2022 Rule of Law report.
(18)
A special joint parliamentary Committee of the two Chambers examined the laws under an urgent parliamentary procedure starting on 12 September. The parliamentary process concluded on 17 October after a positive vote in the Senate.
(19)
The laws were published in the Official Journal on 16 November.
(20)
Milestone 423 of Romania’s RRP, entitled ‘Entry into force of the ‘Justice laws’ (laws on the status of magistrates, judicial organisation, Superior Council of Magistracy).’
(21) Venice Commission opinion CDL-PI(2022)047.
(22)
See notably 2018 Technical report (SWD(2018) 551 final), and 2021 Rule of Law report - country chapter on the rule of law situation in Romania. The rules previously in place raised concerns due to the power assigned to the Ministry of Finance, which could assess whether a judicial error was committed in bad faith or by gross negligence and, subsequently, to initiate recovery actions against judges for the damage caused.
(23)
In its Judgment of 18 May 2021, Asociaţia ‘Forumul Judecătorilor Din România’ and Others, in joined cases C-83/19, C-127/19, C-195/19, C-294/19, C-355/19 and C-379/19, paras 233-241, the CJEU ruled that the rights of defense of judges should be fully respected, that a court should rule on the personal liability of judges and that the law must provide clearly and precisely the necessary guarantees ensuring that neither the investigation nor the action for indemnity may be converted into an instrument of pressure on judicial activity.
(24)
This offence concerns “actions affecting the honour, professional rectitude, or the prestige of justice, committed during the performance or outside the performance of work duties.”
(25)
The offence of “non-compliance with the decisions of the Constitutional Court or the decisions issued by the High Court of Cassation and Justice in resolving appeals in the interest of the law”, which would expose judges to disciplinary liability when disapplying rulings of the Constitutional Court prohibiting them from examining the conformity with EU law of provisions of domestic law, see the judgment of the CJEU of 22 February 2022, RS, in case C-430/21, paras 79 to 93.
(26)
These now have to be reasoned without delay, instead of the previous 20 days deadline, which was often ignored.
(27)
“Once the disciplinary panel of the Supreme Judicial Council has found in favour of the judge, this decision should be final” (CDL-AD (2002) 015, Venice Commission Opinion on the Draft Law on Amendments to the Bulgarian Judicial System Act).
(28) The SCM opinion on the draft laws highlighted a risk that this increase would have a significant impact on the human resources and workload of courts and prosecutors’ offices, with potential consequences for the quality of justice. The application of these provisions and their practical impact on workload and the efficient handling of cases will continue to be monitored under the Rule of Law reports.
(29) These are now 7 years for tribunals, 9 years for Courts of Appeal, 10 years for the Prosecutor Office attached to the HCCJ.
(30) These are the “on-the-spot” promotions, which are based on results obtained in promotion competitions, and the effective promotion, which are based on the evaluation of the magistrates’ activity over the past years. As of 2025, on-the-spot promotions are foreseen to be capped to 20% of the total number of vacant positions. These restrictions on what is seen to be a more objective and meritocratic promotion procedure have been criticised by some magistrates’ associations in Romania.
(31) This modification has also been criticised by some magistrates’ associations and civil society organisations, who argue that the meritocratic and competitive character of the procedure has been reduced. On the other hand, the SCM has argued that the current system was not performing efficiently and that, at that level of seniority, knowledge-based tests for judges are less relevant than an analysis of their performance on the bench.
(32)
Law No 49 of 11 March 2022 on the abolition of the Section for the Investigation of Offences in the Judiciary, as well as for the amendment of Law no. 135/2010 on the Code of Criminal Procedure, published in the Official Gazette No 244 of 11 March 2022. The law was challenged before the Constitutional Court, which declared it constitutional by Decision No. 88, of 9 March 2022.
(33)
The SIIJ had a total of 9 651 cases to solve. Between 2018 and 2022, it solved a total of 2 000 cases. From these cases, the SIIJ issued 7 indictments and sued 9 defendants, leaving the number of open cases at 7002 in March 2022.
(34)
For offences committed by members of the SCM, judges and prosecutors attached to the HCCJ, judges and prosecutors attached to the courts of appeal and the military court of appeal, as well as the judges of the Constitutional Court.
(35)
For offences committed by judges and prosecutors attached to courts of first instance, tribunals and military tribunals.
(36)
Under the new structure, the Prosecutor General may designate up to 14 prosecutors within the Prosecutor’s Office attached to the HCCJ and up to three in each Prosecutor’s Offices attached to the Courts of Appeal. The prosecutors are designated for a period of four years upon recommendation of the plenum of the SCM. They return to their initial position at the end of that term or upon decision of the Prosecutor General to end the designation.
(37)
Statement by the Romanian Judges Forum Association, the Movement for the Defence of the Statute of Prosecutors Association and the ‘Initiative for Justice’ Association, of 24 January 2022.
(38)
Judgment of the Court of Justice of 18 May 2021, Asociaţia ‘Forumul Judecătorilor Din România’ and Others, in joined cases C-83/19, C-127/19, C-195/19, C-294/19, C-355/19 and C-379/19, ECLI:EU:C:2021:393, para. 223.
(39)
The new structure should be ‘accompanied by specific guarantees such as, first, to prevent any risk of that section being used as an instrument of political control over the activity of those judges and prosecutors likely to undermine their independence and, secondly, to ensure that exclusive competence may be exercised in respect of those judges and prosecutors in full compliance with the requirements arising from Articles 47 and 48 of the Charter’, Judgment of the Court of Justice of 18 May 2021, Asociaţia ‘Forumul Judecătorilor Din România’ and Others, in joined cases C-83/19, C-127/19, C-195/19, C-294/19, C-355/19 and C-379/19, ECLI:EU:C:2021:393, para. 223.
(40) Venice Commission, Opinion on the draft law dismantling the section for investigating criminal offences committed within the judiciary (CDL-AD(2022)003), point 37.
(41)
Concerns included the lack of a dedicated competitive procedure and of a specific role for the Prosecutors’ Section of the SCM. The Venice Commission has underlined the importance of ‘giving the prosecutorial section of the SCM a stronger involvement in the initial selection of prosecutors’ (Venice Commission Opinion (CDL-AD(2022)003), para. 28). These concerns were reinforced by the initial decisions of the SCM, which seemed to favour continuity with the previous staff of the SIIJ. So far out of the total 59 posts, 37 have been filled and another 9 proposals are pending. The Prosecutor General flagged some difficulties in having prosecutors appointed by the Superior Council of Magistracy to some offices, leading to discrepancy in the distribution of workload.
(42) Since the SIIJ was dismantled, 1 237 files have been solved by the new structure by the end of September 2022 (786 at central and 451 at local level) and 2 960 cases are still pending at the central level, while the prosecutor offices throughout the country have 4 208 cases pending.
(43) The two recommendations are to “take measures to address remaining concerns about the investigation and prosecution of criminal offences in the judiciary, taking into account European standards and relevant Venice Commission opinions”; and to “closely monitor the impact of the new system on investigating and prosecuting corruption offences in the judiciary”. See also under Benchmark Three.
(44) The recommendation dates from 2016 and its relevance has been emphasized by subsequent developments. Whereas nominations have continued to be characterised by a consensual approach, controversies linked in particular to the arbitrariness allowed by law in the process of dismissals showed the need to ensure clarity and introduce safeguards. The 2016 CVM report also recommended that a procedure which involves a political element should not be applied to lower management posts, deputies and heads of section (which would be left to the SCM and leadership of the organisations concerned).
(45)
See Venice Commission concern on the lack of counterbalance to the influence of the Minister of Justice opinion 950/2019 CDL-AD(2019)014.
(46) CDL-AD(2015)039, Joint Opinion of the Venice Commission, the Consultative Council of European Prosecutors (CCPE) and OSCE Office for Democratic Institutions and Human Rights (OSCE/ODIHR), on the draft Amendments to the Law on the Prosecutor's Office of Georgia, § 19; CDL-AD(2017)028, Poland - Opinion on the Act on the Public Prosecutor's office, § 33. See also CDL-PI(2022)023, Compilation of Venice Commission Opinions and Reports Concerning Prosecutors.
(47)
Judgment of the European Court of Human Rights of 5 May 2020, Kövesi v. Romania, 3594/19.
(48)
Unlike in the previous law, a legal challenge of the President’s decree to dismiss a top prosecutor does not have a suspensive effect on the dismissal.
(49)
Parliament decision 77/2017: https://www.juridice.ro/wp-content/uploads/2017/10/Codul-de-conduită.pdf .
(50)
The Code of Conduct does not specifically mention respect for the independence of the judiciary but includes a general provision on the respect of separation of powers: Article 1 paragraph (3) provides: "Deputies and senators have the obligation to act with honour and discipline, taking into account the principles of separation and balance of powers in the state, transparency, moral probity, responsibility and respect for Parliament's reputation."
(51)
Superior Council of Magistracy website – statements and decisions regarding judicial independence.
(52) Article 3(1) of the Code.
(53) The total number of decisions taken by the SCM in cases of requests to defend the professional reputation and impartiality of magistrates were 36 in 2021 (23 requests admitted, 10 rejected, the rest annulled or withdrawn) and 18 in 2022 (8 admitted, 9 rejected, 1 annulled).
(54)
The amended laws entered into force in December 2018.
(55) 66 decisions relate to the Criminal Procedure Code and 14 decisions to the Criminal Code.
(56) As the Romanian government noted, although some of the unconstitutionality deficiencies have already been remedied by the adoption of legislative amendments, there are still 32 CCR decisions on the Code of Criminal Procedure and 13 decisions on the Criminal Code which have not been followed by legislative interventions.
(57) Examples include the definition of the crime of abuse in office, the conditions for using technical surveillance methods (wiretapping) or the special statute of limitation for crimes. In this respect, see also Benchmark Three.
(58) Decision 67/2022 of the High Court of Cassation and Justice, referring to Decision no. 297/2018 and Decision no. 358/2022 of the Constitutional Court.
(59) https://www.csm1909.ro/PageDetails.aspx?Type=Title&FolderId=9880 . See also Benchmark 3.
(60) See the 2022 Rule of Law report for more details. In particular, the current draft proposes to amend the offence of abuse of power in the Criminal Code to specify that a ‘violation of a duty’ should follow from a law, a Government Ordinance, a Government Emergency Ordinance, or another normative act which, at the date of its adoption, was assimilated to a law. Lack of clarity on this offence had inhibited its prosecution and it is expected that the amendment will facilitate the effective prosecution of this offence. It is also proposed, following a Constitutional Court judgment and a 2018 Opinion of the Venice Commission, to adopt strengthened safeguards for the use of evidence obtained from electronic recordings.
(61)
Milestone 424 of Romania’s RRP, entitled ‘Amendment of the Criminal Code and Criminal Procedure Code’ requires Romania to ‘bring the provisions of the Criminal Code and the Criminal Procedure Code that entered into force in 2014 in line with the Constitutional provisions, in accordance with the relevant national Constitutional Court decisions on the constitutionality aspects of the recent changes made to the Criminal Code and Criminal procedure.’ Romania’s agreed target to complete this reform in its RRP is December 2022.
(62)
The 2022 Rule of law report - Country Chapter on the rule of law situation in Romania and the European Semester Country Specific Recommendations have underlined concerns regarding the predictability and quality of the legislative process in general.
(63)
Venice Commission, Opinion on the draft law dismantling the section for investigating criminal offences committed within the judiciary (CDL-AD(2022)003).
(64) 15 days for each Chamber for the emergency legislative procedure instead of the normal legislative procedure of 45 days per Chamber.
(65) Observations from NGOs present at the debates, and media reports.
(66)
2022 Rule of law report - Country Chapter on the rule of law situation in Romania, p. 2.
(67) See Guide on Article 6 of the European Convention on Human Rights – Right to a fair trial (civil limb): http://www.echr.coe.int/Documents/Guide_Art_6_ENG.pdf .
(68)
See Council of Europe reference CM/Notes/1280/H46-21.
(69)
Romania was sanctioned by the European Court of Human Rights in 2005 on the grounds of failure or significant delay by the State or by legal entities under the responsibility of the State to abide by final domestic court decisions.
(70)
Memorandum nr. L1/1814/26.02.2019 on ‘Measures to Ensure the Execution of Judgments against a Public Debtor, in accordance with the case law of the European Court of Human Rights regarding non-execution or execution with delay of the judgments handed down against a public debtor.’
(71) Interim Resolution CM/ResDH(2022)58.
(72) The implementation will be analysed by the Committee of Ministers of the Council of Europe in March 2023.
(73) The adoption of necessary execution measures for a judgment by the ECtHR is supervised by the Committee of Ministers of the Council of Europe.
(74)
2022 Rule of law report - Country Chapter on the rule of law situation in Romania, p. 28.
(75)
See 2022 Rule of Law report, COM(2022) 500 final, p.24.
(76) Milestone 421 on “Entry into force of the law approving the strategy for the development of the judiciary 2022-2025”.
(77) The issue of staff shortages in the judiciary has gained public prominence in November, where a wave of retirement requests were registered, notably among judges. Magistrate associations pointed to the need for a clear strategy to address shortages and excessive workload. In order to reduce the rate of retirements of judges, as well as to ensure an adequate selection range for recruitment competitions in the profession, both the presidents of the courts of last instance – the High Court and the courts of appeal – and the general assemblies of judges of the courts have called on the other branches of government to take measures to strengthen the status of judges and improve working conditions in the courts in a Resolution adopted on 28 October. Shortages within the judiciary are also being followed in the Rule of Law Reports. The 2022 report noted that the number of retirements continues to exceed the number of new recruitments.
(78) See 2021 CVM report for details.
(79) Elections were organised in early July 2022, during summer recess. The results were challenged and on 19 July SCM admitted challenges from two judges but rejected those of prosecutors, which led to public controversies. See for instance https://ziare.com/alegeri-csm/alegeri-turul-2-procurori-csm-1753710 ; https://spotmedia.ro/stiri/opinii-si-analize/apel-catre-comisia-europeana-csm-dovedeste-ca-romania-are-nevoie-sa-ramana-cu-mcv ; https://romania.europalibera.org/a/alegeri-csm-contestatii/31950487.html ; VIDEO Procurorul Bogdan Pîrlog despre votul din CSM: „O încălcare a legii care ridică probleme penale” - PRESShub .
(80) Several members of the SCM deemed that this interim nomination has circumvented constitutional provisions whereby the President of the Council can be elected for a non-renewable one year mandate, calling into question the legitimacy of several important proceedings initiated in 2022 such as the elections for the Council, the nomination of the new Chief Judicial Inspector and the selection of a new President of the High Court of Cassation and Justice.
(81) Superior Council of Magistracy, Decision 1 of 11 February 2022. The controversy was linked to the fact that the Council's draft amendments to the law were taken up by the Ministry of Justice in a revised draft law, which led to the Council issuing a positive opinion without comments. In a letter to the Commission, several Members of the Council argued that this created a false public perception of a full agreement of the judicial system towards this law, despite a lack of consultation of courts and prosecution offices on the draft provisions.
(82) Decision 115 of 12 August 2022.
(83)
The plenum issued no decisions during 2022, and 7 in 2021. In 2021, one of the requests admitted concerned public televised statements made by one SCM member himself related to the prosecution. The prosecutors’ section concluded in December 2021 that the statements had seriously affected the independence and impartiality of prosecutors, in particular those charged to investigate corruption offences.
(84) The SCM has not yet published the 2021 Report on the Judiciary, although its mandate will end in December 2022.
(85)
Judgment of the Court of Justice of 18 May 2021, Asociaţia ‘Forumul Judecătorilor Din România’ and Others, in joined cases C-83/19, C-127/19, C-195/19, C-294/19, C-355/19 and C-379/19, ECLI:EU:C:2021:393, para. 207.
(86)
The latest progress report for Romania under the CVM, (COM(2021) 370 final), notes that there remain cases where disciplinary investigations and heavy sanctions on magistrates critical of the efficiency and independence of the judiciary have raised concerns. More recently, the disciplinary proceedings initiated by the Judiciary Inspection against a judge of the Pitești Court of Appeal generated such concerns, in substance because he decided to disapply the legislation establishing the SIIJ in light of the judgment of the ECJ from May 2021. The SCM eventually rejected the disciplinary action by decision of 14 April 2022.
(87)
C-817/21, R.I. v Inspecția Judiciară, N.L.
(88) The Chief Inspector can overule such decisions only once and with an obligation to provide reasoned grounds.
(89) 24 actions concerning judges and 13 concerning prosecutors in 2021, 26 actions concerning judges and 6 concerning prosecutors in 2022. The sanctions issued on judges included warnings, suspension from office, reduction of monthly employment allowances, demotion in rank and exclusions from magistracy as regards judges. For prosecutors, only warnings were issued.
(90) See Rule of Law report 2022, Country chapter on Romania for details.
(91)
Judgments of the Court of Justice of 15 July 2021, Commission v. Poland (Disciplinary regime for judges), C‑791/19, ECLI:EU:C:2021:596, para. 138, and of 21 December 2021, Euro Box Promotion e.a., in joined cases C‑357/19, C‑379/19, C‑547/19, C‑811/19 and C‑840/19, ECLI:EU:C:2021:1034, para. 239.
(92) Two judges were concerned by the opening of five disciplinary investigations in past months, who claimed that the cases were opened at the request of the defendants, with a view to challenging the substance of the judgment, or ex officio by the Judicial Inspection.
(93) https://www.inspectiajudiciara.ro/ro-ro/page/comunicate-de-presa .
(94)
Between 1 June 2021 and 30 September 2022, ANI analysed over 1 700 files and found 218 integrity incidents: 120 cases of incompatibility, 81 cases of administrative conflict of interest and 17 cases of unjustified wealth. Integrity inspectors identified 68 cases involving possible criminal offences and referred them to the competent bodies for further investigation.
(95) The new President had been Vice-President since 2017. The selection procedure for a Vice-President was launched in September 2022 (after a first unsuccessful round earlier this year) and should be finalised by the end of the year. The President of ANI flagged that there was little interest from qualified candidates (only one candidate applied), also due to the remuneration conditions of the post.
(96) By 30 September 2022, some 10.7 million assets and interests disclosures had been published on the e-DAI portal ( http://declaratii.integritate.eu/ ).
(97) Information received from ANI in the context of the country visit to Romania for the purposes of the 2022 Rule of Law report.
(98) Milestone no. 431 of Romania’s RRP states: ‘Consolidated laws on integrity shall enter into force. The update of the integrity legislation shall be realized based on a prior evaluation and analysis of the integrity laws, together with an initial clustering of the normative acts. Within the second phase of the project, the existing laws shall either be unified and updated, or new normative acts shall be proposed.’
(99) ANI is currently carrying out a comprehensive mapping of existing integrity rules, of international standards and of best practice in other Member States. This will be finalised by the end of 2022 and will inform work on the new consolidated law.
(100) HCCJ Decision of 16 November 2020 and HCCJ Decision 1/2021 of 19 March 2021.
(101) Milestone 431 on the ‘Evaluation and update of legislation on the integrity framework’.
(102)
As acknowledged in the input from Romania for the Rule of Law report, p. 27 and National Anti-Corruption Directorate (DNA), 2021 Activity Report, p. 8.
(103)
Constitutional Court, Decision No. 514, of 14 July 2021, The Court argued that, as the DNA is a specialised department within the Prosecutor’s Office attached to the HCCJ, its prosecutors should have the same seniority as prosecutors at the Prosecutor’s Office attached to the HCCJ (12 years). DNA and DIICOT had argued that the seniority required for the operation within a prosecutor's office structure is not provided for in constitutional law, and cited the practical reasons behind a reduction to 7 years of seniority.
(104) A transitional provision delays until 2026 the inclusion of the three-year training period in the calculation of seniority. In the short term, this could help increase the occupancy rate in the DNA.
(105)
In Spring 2022, DNA operated with 14 delegated prosecutors out of 145 filled positions (10% of staff). The new law on the statute of magistrates foresees no delegation from the DNA/DIICOT; but secondments are possible to the DNA/DIICOT from other prosecution offices (once, for a maximum of 1 year).
(106)
Milestone 429 of Romania’s RRP.
(107)
As noted in the judgment of the Court of Justice of 18 May 2021, Asociaţia ‘Forumul Judecătorilor Din România’ and Others, in joined cases C-83/19, C-127/19, C-195/19, C-294/19, C-355/19 and C-379/19, EU:C:2021:393, para. 221-222.
(108)
In its opinion of 2022, the Venice Commission recommended restoring the competences of the specialised prosecution services (DNA and DIICOT) to also investigate and prosecute offences within their remit committed by judges and prosecutors, noting that “[t]he objective of dismantling [SIIJ] should be to ensure more efficacy in investigating and prosecuting offences – most importantly corruption – committed by judges and prosecutors. It is implausible that a structure of non-specialised prosecutors at the level of the prosecutor’s offices attached to the HCCJ and those attached to the courts of appeal will be better placed to conduct investigations into allegations of corruption by judges and prosecutors than the existing specialised prosecution service DNA.” (see Venice Commission, Opinion on the draft law dismantling the section for investigating criminal offences committed within the judiciary (CDL-AD(2022)003, point 37).
(109)
Written submission received from the Prosecutor-General in the context of the country visit for the 2022 Rule of law report.
(110) See also under Benchmark One on the current focus of work to process the backlog and prioritise cases.
(111)
Article 3(5) of the new Law. In case of disagreement between two prosecutorial offices, the Prosecutor General decides if the cases remain joined.
(112) So far the DNA reported no incidents related to this issue.
(113)
Constitutional Court of Romania, Decisions no. 685/2018 and no. 417/2019. The Constitutional Court ruled that the practice of appointing de jure members in the composition of the five-judge panels of the HCCJ was contrary to the rule that required that all members be drawn by lot. It also ruled that the HCCJ had failed to establish specialist three-judge panels to deal at first instance with corruption offences. For more details, see 2020 Rule of Law report, Country Chapter on the rule of law situation in Romania, p. 10.
(114)
Judgment of the Court of Justice of 21 December 2021, Euro Box Promotion e.a., in joined cases C-357/19, C-379/19, C-547/19, C-811/19 and C-840/19.
(115)
Decision of the High Court of Cassation and Justice of 7 April 2022.
(116)
Decision of the High Court of Cassation and Justice of 10 May 2022 in case 105/1/2019.
(117) Beyond corruption cases, according to an estimate provided by the specialised prosecution office handling terrorism and organised crime, a total of 605 ongoing cases, with a total estimated financial damage of over €1 billion, would be affected in the area handled by DIICOT. Estimates from the General Prosecutor’s office on other crimes were not available.
(118)
DNA, press release of 28 October 2022, https://www.pna.ro/comunicat.xhtml?id=11549 .
(119)
Judgment of the Court of Justice of 21 December 2021, Euro Box Promotion e.a., in joined cases C-357/19, C-379/19, C-547/19, C-811/19 and C-840/19. For more details, see 2022 Rule of Law report, Country Chapter on the rule of law situation in Romania, p.14.
(120)
The Chamber of Deputies amended its rules of procedure in 2019 to introduce specific reference to the criteria set out in the Venice Commission’s report on the purpose and waiver of parliamentary immunity. In its report of March 2021, GRECO notes that an informal requirement for prosecutorial bodies to submit the whole file when prosecuting a minister or a former minister who is also a member of Parliament has apparently been lifted by a letter. Greco RC4(2021).
(121) One request concerned the approval for search in the case of a Member of the Chamber of Deputies, the other concerned the approval of a criminal investigation regarding a sitting Minister. Both requests were addressed to the Chamber of Deputies.
(122) https://www.monitoruloficial.ro/Monitorul-Oficial--PI--1074--2022.html .
(123)
Since the 2021 CVM report less prosecution cases concerned bribery compared to 2020 and 2021, while the focus in investigating corruption allegations concerning public administration officials continued.
(124) In July 2022, the scheme of the Public Ministry staff was filled only at 55% and the situation further deteriorated.
(125)
This is also set out in Romania’s RRP, whose Milestone 426 required the ‘Entry into force of the Government Decision approving new National Anti-Corruption Strategy’.
(126) OECD, Evaluation of the Romanian Anti-Corruption Strategy 2016-2020.
(127)
This has also been subject to Milestone no. 422 of Romania’s RRP requires the ‘Entry into force of the law amending the powers of the National Agency for the Management of Seized Assets.’
(128)
Figures on 31 October 2022, provided by ANABI for the purposes of the progress report sent to the Commission in November 2022.
(129)
Commission Decision of 13 December 2006 (C(2006) 6569)
(130)
Terminating the CVM for Romania would take the form of a Commission decision revoking Commission Decision 2006/928/EC of 13 December 2006 establishing a mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption (C(2006) 6569).