Raport - June 2007 - Recent Developments in the Romanian Judiciary Reform and the Fight Against Corruption

10 Noiembrie 2008

We showcase bellow some of the recent regress phenomena of the Romanian judiciary reform, as well as several acute problems to which the competent authorities should have already formulated answers.

A. The absence of a human resources policy

1. The Superior Council of Magistracy (SCM), which has taken over since 2004 the competences regarding the judges' and prosecutors' career, including the filling in of vacant positions, the promotions and the procedures for leaving the judiciary, does not exercise these tasks based on a human resources policy or a medium/long term strategy.
So far, after two years since the starting point of the Reform Strategy, there is no view on the real needs in terms of number of judge and prosecutor positions in the system, according to current jurisdictions. Moreover, the process of filling in the vacant positions does not consider the long term dynamics of human resources, in order to avoid a potential future collapse of the system.
A clear SCM human resources policy is also necessary for establishing the professional training activities and for the proper adjustment of the specialized institutions (e.g. National Institute of Magistracy)
SCM resumed, on January 2007, the extra-ordinary procedure for recruitment of judges and prosecutors . Thus, 12 applicants were admitted for judge positions and 50 for prosecutor positions, in February and March 2007. This procedure of admission to magistracy is still open and used by the SCM. The interviews organised so far by the SCM for admission to magistracy without a contest do not guarantee that persons suitable from a professional and ethical point of view are entering the judicial system.
The extra-ordinary means of admission to magistracy, without attending the National Institute of Magistracy initial training program (2 years), must not go beyond real exceptional situations, guaranteeing at the same time proper professional training, such as: filling in a limited number of vacant prosecutor positions and admission to magistracy of former judges, prosecutors or of attorneys with at least 10 years seniority, only after these are able to prove an adequate knowledge level.

2. The number of technical staff within the Ministry of Justice was increased by 58 positions, through Government Decision no. 384/2007. Nevertheless, the Government's approach in this regard is hardly understandable, as long as in 2006, in a period of maximum effort in view of the accession, it has promoted a policy for reducing the number of civil servants in all ministries and subordinated agencies only to allow afterwards, following the EU accession, an increasing in the number of MoJ staff, from 412 to 470, through the above mentioned Government Decision (these figures do not comprise dignitaries and positions within minister's cabinet). Moreover, under the same circumstances, the Government, in spite of arguments upheld by MoJ, reduced in 2006 the number of state secretaries in the Ministry from three to two only to increase it back to three few months later. Unexplainable and unjustified is also the reestablishment of the Directorate for Military Courts within the Ministry of Justice.

3. The reform of the institutional and legislative framework, as far as human resources management within the penitentiary system is concerned, was ended due to the lack of interest of the current National Administration of Penitentiaries (NAP) leadership as regards the setting up of mechanisms able to guarantee the eradication of corruption in this field.
The Strategy for the Reform of the Judiciary 2005 - 2007 and the Action Plan for the implementation thereof, approved by Government Decision no. 232/2005, provided the financing of 3,000 positions, vacant at that time, and for the supplementing of the personnel schemes with 1,600 additional positions. 1,700 positions were filled in 2006 and beginning of 2007, mostly with specialists in education, and social and psychological intervention. Afterwards the recruitment process was ended.
The minister of justice, Tudor Chiuariu, did not react in any way to the recent scandal on the abuses of the NAP general director concerning the employment of his own relatives within NAP structure. Moreover, the minister tried to undermine the evidence presented by MoJ Inspection Body on this matter. It was only after the media reflected these deeds that the criminal prosecution bodies were notified. Furthermore, as a result of this scandal and of NAP employees' endeavors for these abuses to be publicly known, the NAP general director and the Ministry of Justice retaliated against NAP deputy general director, the head of NAP Human Resources Department, the head of NAP Cabinet service, as well as some others penitentiary directors, who were therefore dismissed from their leading positions.
Also, contrary to the Order of Minister nr 1218/2006, which was providing a competitive methodology, the practice of secondment of magistrates to positions of penitentiary directors was reinstated. This is a non-transparent procedure, which eludes the mandatory open competition system for civil servants. These secondments lead to a permanent instability and an important expertise deficit at the level of the penitentiary system leadership.


B. Failure to enhance the accountability of SCM

Disregarding two reports of the European Commission and a special clause included in the cooperation and verification mechanism, the Superior Council of Magistracy registered no progress as far as its own accountability is concerned: solving the ethical problems and the potential conflicts of interests regarding its members.

Conflicts of interests
Although some of the SCM members have chosen permanent activity, since February 2007 no further developments were registered as regards the options of the SCM members: 7 SCM members, out of 14 elected, have chosen permanent activity, but four of them still have leading positions within courts and prosecutors' offices. In a situation of non-legality is also the former president of SCM in 2006: although on March 15, 2007, the SCM Plenum took note of his retiring request, not even today SCM did send it to the President of Romania for his releasing from the judge position, breaking the terms and obligations provided by the law and by the SCM regulations. Therefore, this judge continues to be both a SCM member and president of a Court of Appeal. Unfortunately, also the SCM members, who chose to be the permanent members, gave up only temporarily their leading positions within the courts, to which they shall be returning at the end of the SCM mandates. As a result, during one's mandate as SCM member (until 2010), a provisional situation is maintained in the courts and prosecutors' offices in question, with negative consequences on local management (e.g. Bucharest Court of Appeal).

Non-observance of ethical standards
The ethical standards entailed for the SCM, as the supreme disciplinary body for the judiciary, are still not observed. Considering the statute and the activity of the SCM members, one can see that the deontological code applicable to magistrates is insufficient, as it does not cover situations already persistent within the SCM, such as: collaboration with former secret police - Securitate, false statements submitted in order to acquire certain benefits, employment of relatives within SCM technical staff etc.
Overall, one may note that SCM only took measures in the fields, which do not directly affect the position or statute of the SCM members, such as: unification of jurisprudence and filling in vacant positions (see A1). In spite of the benchmarks imposed in the framework of EU accession, SCM continues to be an institution not accountable to anyone, which takes fundamental decisions in an nontransparent and unjustified manner, and whose standards do not guarantee the impartiality in the decision making process. Moreover, regional representation of SCM inspectors is still limited, considering that 26 out of the 37 inspectors have been recruited from Bucharest courts and prosecutors' offices.


C. Politicians redirect corruption through the back door

The practice of adopting targeted laws which, according to the World Bank, represents an indicator of institutionalized corruption, has continued, in spite of warnings coming from foreign officials, civil society and some isolated voices within the political space.

Examples:
1. Government Emergency Ordinance no. 3/2007 postponed the coming into force of the new insolvency law (adopted in 2006 - Law no. 85/2006) for 28 companies, until after the transferring of the property rights on the shares and assets of these companies. Thus, by means of a normative act equal in judicial power to a law, a discriminatory regime is established, favoring certain market operators, by instituting total exemptions from the insolvency regime, which provides adequate guarantees for creditors. Moreover, now it is possible to alienate the viable assets of these companies through less transparent procedures. Furthermore, the setting up of this discriminatory regime infringed EC legislation, since this represents state aid granted without notification according to Art. 88 (3) of the Treaty establishing the European Community and is therefore unlawful, as the spokesperson of the European commissioner for competition declared on May 15.
2. Law no. 141/2007 repelled Government Emergency Ordinance no. 48/2006 providing for the termination of the duty-free trading of goods regime at the land border crossing points, upon the date of Romania's accession to the European Union. The Emergency Ordinance had a double purpose: harmonization with EC law and observance of the Member State obligations on one hand, and elimination of a source of corruption and criminality on the other hand. The statistical data provided by the Ministry of Administration and Interior and the National Agency for Tax Administration showed frequent breaches of law regarding the duty-free trading of goods regime by unlawful bringing and placing of the goods on the market on Romanian territory, without paying the owed taxes. The Parliament was the one to repel this GEO, thus preserving o source of corruption and smuggling through the reinstatement of duty-free shops at the border with the non-EU states (Moldova, Ukraine, Serbia).
3. Law no. 69/2007 amended Law no. 78/2000 on the prevention, finding and sanctioning of corruption deeds by de-criminalized the offences of granting illegal credits for which a 5 to 15 years imprisonment penalty was provided. As a result, The National Anticorruption Directorate (NAD) had to close over 50 cases, out of which some concerned damages of hundreds millions Euro. Among the potential beneficiaries of this law amendment are a former SCM member, bankers and important businesspersons. Also, the NAD chief prosecutor declared, as far as this matter is concerned, that: "prosecutors have investigated such cases - which are not few, there are tens of cases, maybe hundreds of such cases, I do not know, but anyway there are at least tens of this kind of cases - and have issued indictments. For some of these offences, broadly called granting of illegal credits, we have convictions, we have final convictions, we have orders to cover damages. What will happen from now onwards is the following: in all these cases, the defendants will be acquitted on the grounds that the legislator, i.e. the Parliament, has de-criminalized the deed."
4. Law no. 334/2006 on the financing of political parties and electoral campaigns was adopted by Parliament in July 2006, comprising much stricter and more transparent provisions in the field. The EC Monitoring Report in September 2006 concluded, under the chapter Anti-corruption measures, that "Romania has continued to make progress in fighting corruption. [...] In July new legislation was adopted tightening the rules on the financing of political parties". Government Emergency Ordinance no. 8/2007, adopted in February 2007, suspended the new provisions (until December 31) on the subventions granted to political parties from state budget, referring also to the articles which regulate the political parties' obligation to publish their funding.


D. Weak points in the final version of the Law on the National Integrity Agency, as amended

While the adoption of the Law on the National Integrity Agency (NIA) is a step towards the right direction, a lot remains to be done to improve the legislative and institutional framework regarding the checking of declarations of assets, interests and incompatibilities. The next months will be crucial in evaluating whether NIA will rise to the level of expectations or whether it will remain a window-dressing exercise. However, it needs to be clearly stated that the start-up is not particularly encouraging as NIA, in the form adopted by Parliament in May 2007, was born without the ‘teeth' that could ensure its survival in the very troubled Romanian political environment. Moreover, the modality of selecting the candidates for the National Integrity Council raises lots of doubts upon the future of the Agency.

The adoption of the NIA law
The law on the National Integrity Agency was adopted by Parliament on May 9, 2007. On the date of its adoption by the Senate (last Chamber to decide), the minister of justice thanked the MPs for their excellent contribution to the text. He has also underlined that, by adopting the law, the Parliament has shown its determination to seriously tackle corruption.
In spite of the warm congratulations addressed by the minister of justice to the Parliament, the NIA law, as approved by Parliament, was criticized for lacking the main features that would ensure an efficient control of the declarations of assets and interests of public officials. The media has also treated the matter with circumspection, especially considering that the adoption of NIA law came immediately after the minister's request for revocation of Mr. Tulus, chief-prosecutor of an NAD section. The same reserved reaction came from Brussels, which, after commending Romania for the adoption of the law, announced that it will analyze it in detail before issuing a final evaluation.
The very next week, the minister of justice conveyed a press conference to announce that the Government would adopt during the same week a Government Emergency Ordinance to amend the NIA law. The main announced amendments regarded the threshold from which verifications could start (from 20.000 Euro or 10% of the wealth to 10.000 Euro), further refinement of deadlines for various actions and "terminology clarifications". Government Emergency Ordinance no.49/2007 was adopted by Government on May 30th, 2007 and is currently undergoing debates before the Chambers of Deputies.

The main deficiencies of NIA law:
1. The text adopted by Parliament referred to "illicit wealth" instead of "unjustified wealth", thus reducing the competences and consequently the effectiveness of NIA. Under Romanian law, "illicit" may only be used in reference to assets resulted from crimes, misdemeanors and civil illicit . These areas were clearly regulated in the existing Romanian legislation, therefore no further actions were needed in reference to "illicit wealth". The area of interest for NIA was the "unjustified wealth", which exceeds the definition of "illicit wealth". In the text proposed by the Ministry of Justice dating back to 2006 the control referred to "unjustified wealth". Government Emergency Ordinance no. 49/2007 replaced "illicit" with "unjustified", thus coming back to the initial version proposed by MoJ.
2. The burden of proof rests on NIA inspectors, while the person under verification can oppose to an expert evaluation of his/her assets without giving any reasoning. This will make the verification process very difficult in practice.
3. In order for an initial complaint to be valid, it has to come from an interested party. The main shortcoming resulting from the use of this terminology is that the person will have to prove that she/he has a personal interest in the case (that she/he was somehow directly damaged by the action of the public official). In most cases that will be impossible. This, combined with the fact that NIA law provides that the claimants may be held liable under criminal law for filing ungrounded complaints, will have a very strong deterrent effect on those who would be interested in submitting a complaint at NIA.
4. Verifications can only be conducted while the public official holds the public position. In the version proposed by the Ministry of Justice the investigative powers were extended for 5 years after the end of the mandate, for all assets acquired during the mandate. This restriction is extremely problematic, especially if it is considered together with the control of the Senate over NIA. In the recent past, Romania has witnessed very strong counter reactions coming from the Government and Parliament against institutions conducting investigations on their members, such as NAD. If this was possible with regard to long establish institutions, it is doubtful that a young institution like NIA will find the necessary strength to resist undue influence from the political class. Moreover, the restriction of the verifications to the duration of the mandate makes the final declaration of assets filled in at the end of office futile, and diminishes the possibility to verify the public officials' assets.
5. The definition of conflict of interests is extremely limited - first-degree relatives (i.e. parents or children) - raising doubts with regard to the effectiveness of the control performed by NIA. The same is applicable to the incompatibilities regime, which remains unchanged with regard to definitions.


E. The Assignment of the National Council for Integrity (NCI) of the National Agency for Integrity (NAI): confusion and untrustworthy candidates

Compliant with the Law 144/2007 concerning the setting up, organizing and functioning of the National Agency for Integrity, and with the Emergency Ordinance 49/2007, concerning the amendment of the Law 144/2007, representatives of various organizations should be appointed for the National Council for Integrity (NCI) within 15 days since the coming into force of the law.
1. The selection procedures were characterized, at least, by lack of transparency. So, despite the fact that 4 local professional associations of judges and the Society for Justice Association (SoJust) pleaded for an open procedure of nominations for NCI, the Superior Council of Magistracy convened on Monday, June 18, 2007, a meeting of professional associations of magistrates in order to elect their representative. The Council announced the meeting, Friday 15, by posting the information, having no title, on a secondary page of SCM web-site. The associations, whose addresses were posted on the web page of the Ministry of Justice, were not announced, SCM arguing that the contact data were unknown. SoJust had to get involved and announced most of the professional associations in order to participate to the selection procedure. Finally, two persons have been nominated: Horatiu Dumbrava, a SoJust member supported by 6 local associations of judges, and Viorica Costiniu, supported by the Romanian Association of Magistrates and an association from Cluj. Both nominations are currently registered at the Senate.
2. Taking into account that the aim of the National Agency for Integrity (NAI) is the increasing of the integrity level within the public institutions, it is disappointing that political parties chose to designate persons who do not meet integrity criteria agreed between the political parties and the civil society organizations that promote a justice according to European standards. The Conservative Party decided in the last moment to drop the nomination of Rodica Stanoiu (former member of Social Democrat Party) for NCI. Rodica Stanoiu was included on the black list of the Coalition for a Clean Parliament among the persons who do not meet the integrity criteria required for an MP. She was replaced by Alice Elena Draghici, a lawyer known to the general public as defender of Omar Hayssam (acused of terrorism), Jenica Boerica (accused of several severe criminal offenses) or of doctor Serban Bradisteanu (accused of corruption). Draghici also served as the lawyer of Rodica Stanoiu in the „The minutes of the Social Democrat Party Case". The Democratic Alliance of Hungarians in Romania intends to nominate, as a member of NIC, the senator Stefan Pete who was also on the list of the Coalition for a Clean Parliament. Media wrote about the material advantages he was supposed to have had during his public mandate. Taking into account even these two examples, it becomes clear that the political parties should drop the nominations of persons who do not meet criteria of integrity or of active MPs, who can, at any moment, be accused of direct political interests in the assets controlling activity of NIA.


F. Doubtful amendments to the Criminal Procedure Code

Several amendments elaborated during this Parliamentary session by the Legal Commission of the Chambers of Deputies within the framework of the debates on the approval of Government Emergency Ordinance no. 60/2006 for the amendment of the Criminal Procedure Code raise doubts and worries insofar as the consequences of their potential adoption are concerned.

• The Social Democratic Party proposes an amendment according to which criminal prosecution is restricted to a maximum of 6 months, and exceptionally to 1 year if it regards offences punishable by life imprisonment or imprisonment penalties over 15 years. Should these time limits be exceeded, criminal prosecution shall end. As an immediate result of adopting such an amendment, many criminal cases would be unjustifiably closed. For example, unsolved murder cases with unknown offenders, international organized crime offences (a rogatory commission is set up in at least 6 months, or even more if several states are involved), complex economic-financial crimes requiring a technical expertise that may be carried out for more than 1 year. There are no similar regulations within the legislation of other European countries, thus having a clear view on the politicians' intent of obstructing the investigations in new and old complex criminal cases.
• Another amendment proposes the repealing of Art. 911 (2), which provides for the possibility of the prosecutor to order the audio-video recording/interception only in emergency situations and under the subsequent control of a judge, as the single exception to the rule according to which the recordings and interceptions are authorized only by a judge. As a result of repealing this provision, prosecutors will be deprived of the legal means necessary to administer evidence threatened by imminent disappearance. Thus, for an offence of bribe taking, if the deed is to be committed shortly after the complaint is filed or by mid-night, obtaining in due time the judge authorization for the audio-video recording would be impossible. The catching in the act of those who commit corruption offenses will be rendered more difficult by the adoption of this amendment. The European legislations recognize the right of the prosecutor to authorize recordings in emergency cases, due to certain circumstances, under the imperative condition that there be subsequent control of a judge. These requirements are already fulfilled by the current provisions, which are intended to be repealed. If abuses of the prosecutors are invoked, the right solution is their sanctioning and not the obstructing of managing the probative evidences.

Apart from these, there are other amendments to the Criminal Procedure Code in the debate of the Chamber of Deputies that one cannot find in any other European legislation and that, unjustifiably, would make more difficult the criminal proceedings. These amendments were initiated after the last year amending of the Criminal Procedure Code by Parliamentary debates. Having this in view and the fact that at the level of Ministry of Justice there is already a commission working for the drawing up of a new Criminal Procedure Code, one could question the real motives for modifying again and in haste the CPC. The moment when all these amendments are proposed strangely overlaps with the period that witnesses the biggest number of politicians under criminal investigations in the last 17 years.


G. The Tulus Case

The current Government has pledged to accelerate the fight against corruption. Unfortunately, its promise became highly questionable, first and foremost, due to the request advanced by the Minister of Justice, on May 8, 2007, for the removal from office of the Chief Prosecutor of one of the National Anticorruption Directorate's (NAD) sections, Doru Florin Tulus. There are various reasons why this action is abusive and insubstantiated:
1. Not long before the request for dismissal was formulated, the Minister of Justice expressed his satisfaction and support towards NAD activity, during the discussions with EU experts who conducted an evaluation mission in Romania, on behalf of the European Commission. Moreover, after the Freedom House report, Nations in Transit, releasing, the Minister of Justice issued a press release, on June 18, 2007, in which the anticorruption efforts of NAD were praised.
2. The decision to dismiss Prosecutor Doru Tulus was taken in haste, without any previous analysis of his activity or a credible motivation, as chief prosecutor of a NAD section.
3. Asked about the arguments of the dismissal request, the Minister of Justice answered that he did not have to justify it. Yet, this represents a blatant infringement of the law and a step back from the customary standards with respect to the procedure of dismissal of prosecutors having key leadership positions within the Public Ministry.
4. The unusual, unprofessional and non-transparent procedure raises many doubts with respect to the real reason for this request. It is significant that the NAD section conducts several investigations concerning top politicians. It was also noticed that the moment when the request was filed overlapped with the procedure for the suspension of the President of Romania.
5. The powerful reaction of the system and of the community as a whole regarding this unexpected request of dismissal of a chief prosecutor of NAD is to be noticed. The reaction consisted in:
• The protest signed by prosecutors, expressing their disapproval of the harsh and circumstantial manner the Minister of Justice used to ask for the dismissal of one of the chief prosecutors of NAD. This was one of the first public reactions of the judicial system against the interference of politics.
• The open letter the National Institute of Magistracy sent on May 9, 2007, through which the invitation addressed to the Minister of Justice to participate at a meeting of the judicial auditors, was repealed, following the unjustified request of dismissal of prosecutor Doru Tulus.
• The top resignations from the Ministry of Justice: on May 9, 2007, the Secretary of State for European Affairs, the Director of the Department for the Relation with the Public Ministry and for the Prevention of Criminality and Corruption and a personal adviser of the Minister handed in their resignations as a protest against the abusive request of the minister of justice.
• The presence of the international community representatives (Embassies of EU Member States and the Embassy of the United States of America in Bucharest etc.) at the meeting of the Superior Council of Magistrates Plenum on May 16, 2007, which took into discussions the minister's request. Their presence proves the concerns of the international community with respect to the abusive request of the Minister of Justice that might create a dangerous precedent regarding the political interference within the activity of the judicial system.

Unfortunately, the Superior Council of Magistrates lacked a resolute reaction: although it did not give an answer to the dismissal request, SCM decided, following the demand of the Minister of Justice, to conduct a general checking of NAD activity. Nevertheless, none of SCM members asked the Minister of Justice to withdraw the request for the dismissal of the NAD prosecutor, Doru Tulus, until the checking was complete. Therefore, the impartiality that the SCM inspectors should prove during the checking procedure will be questionable, taking into account that there is an ongoing procedure for the solving of the dismissal request. This is a decisive moment for SCM. The approach it will take concerning this problem will have an important impact on the way the Council understands to fulfill its main attribution - to guarantee the independence of the judicial system from politics.

Following this request, the Chief prosecutor of NAD declared publicly that the Minister of Justice, Tudor Chiuariu, demanded during a phone conversation that the anticorruption prosecutors stop indicting politicians during the month of the suspension and referendum procedure concerning the President of Romania. Also in this matter, the SCM approach will be essential for guaranteeing the independence of the judiciary.


H. Unjustified adjournment of the cases in the court

One of the reasons for which the Minister of Justice, Tudor Chiuariu, has asked for the revoking of prosecutor Doru Tulus from his leading position in NAD is, according to his own statements, that there are not any convictions in important cases of corruption: "I proposed to have an exact evaluation of the efficiency in the fight against corruption. We do not have this efficiency, we do not have convictions, we have only some open cases and countless visits at the prosecutor's offices" (April 27, 2007). Apart from the confusion made by the minister of justice himself between those who investigate (prosecutors) and those who judge and finally convict or acquit (judges), a careful monitoring of the way of the cases in justice, once the prosecutors finish the indictment, will show that those indicted solicit and obtain countless postponements of the trial and claim exception of unconstitutionality of the laws, which have as a prime effect the suspension of the trial for long periods. Their attitude in the court is contradictory with their own statements during the investigations of the prosecutors, when they are used to claiming that they are not guilty and eagerly wait to prove their innocence in the court.

Some examples regarding cases with major public exposure:

Maria Huza (former member of SCM, former president of the Bucharest Tribunal) was sent to court in January 28, 2006 for false declarations and instigation to credits allotment with infringing the law. The case was initially at the High Court of Cassation and Justice (several postponements due to absence), than it was moved to the 3rd district law court, where it was registered at October 10, 2006. The web site of the 3rd district law court writes down 6 terms of judgment until the lawyers claim an exception of unconstitutionality of the law. March 1, 2007, the court stops the process once the case is sent to the Constitutional Court. In actual fact, even though the case has been on the roll of the judgment instances for more than a year, its content has never been discussed.

Ion Dumitru (MP, former director of National Administration of Forests Romsilva) was sent to court on February 28, 2006, for abuse of office against public interests with the purpose of obtaining a patrimonial advantage. According to the web site of ICCJ, during the third term of the trial, the lawyers claimed an exception of unconstitutionality of the law. On July 4, 2006, the case was sent to the Constitutional Court, a procedure that lasted 7 months, while the trial was suspended. After the rejection of the call of exception of unconstitutionality, there followed 6 other terms of the trial. The next one is on July 27, 2007.
On March 1, 2006, Ion Dumitru declared that he is not guilty and that he will prove this once the case goes to court: "I trust the judicial system and that justice will be made with respect to what those acquisitions meant for the".

Vasile Savu (former MP, president of Mining Trade-Unions Confederation) was sent to court on May 11, 2006, for several criminal offenses, among which corruption offenses provided by the Law 78/2000. According to the information on the web site of the 1st district law court, after 10 terms of trial, the lawyers invoke an exception of unconstitutionality of the law, and on January 24, 2007, the case is sent to the Constitutional Court. After 3 months of suspension of the trial, the CC rejected the request. The trial has been resumed, and other 3 terms of the trial have been exhausted, the last on June 13, when another postponement was decided.

?erban Mih?ilescu (MP, former Minister Secretary General of the Romanian Government) was sent on trial on May 8th 2006, for having perpetrated the crimes of taking bribery and disrespecting the norms concerning ammunition. After nine terms of judgment, the case was sent to the Constitutional Court, on May 17th 2007, and the trial was adjourned until the Court would take a final decision.
March 22nd 2006, after hearings at NAD, Serban Mihailescu declared: "I am by no means guilty of this charge".

Gheorghe Copos (senator, former deputy Prime Minister) was sent on trial on June 6th 2006 for having perpetrated the crime of tax dodging. After six terms of judgment, the defense demanded the case to be sent to the prosecutor. On January 9th 2007, the High Court of Cassation and Justice rejected the exception of absolute nullity of criminal proceedings and of the illegitimacy of the Court's notification invoked by the lawyers, as groundless. After two other terms, the exception of unconstitutionality was claimed, the case being sent to the Constitutional Court on February 15th 2007, and the trial adjourned.
In May 2006, Gheorghe Copos pleaded not guilty in front of the senators. He argued that he was put on trial for "a supposed crime of concealing a taxable object (...) We shall prove that I did not conceal that taxable object and made a business in accordance with the general norms of transactions in Romania".

Ionel Mantog (former Secretary of State, former Director of National Society of Lignite Oltenia) was sent on trial on September 6th 2006 for having perpetrated more crimes, among which taking bribery, false declarations, abuse of office. After two terms of judgment ended up with adjournment, the prosecutors asked for the case to be sent away from the Court of Gorj, because his wife was working there. On September 6th 2006, the case was registered at the Court of Sibiu. According to the information posted on its site, it seems that the Court postponed it six times, the last term being June 21st 2007. On August 23rd 2006, Ionel Mantog pleaded not guilty, arguing that he had a counterfeit case and that he could not believe in the justice of this investigation.

Adrian Nastase (deputy, former Prime Minister) was sent on trial on November 13th 2006 for having perpetrated the crimes of taking bribery, of blackmail and for the crime provided in Article 13 of the Law 78/2000, concerning the use of influence or authority by a person holding a high position in a party, with the aim of obtaining for himself or for another advantages that are not due to them. His wife, Daniela Nastase and Irina Jianu, former State Inspector at State Inspectorate in Constructions, were sent on trial in the same case. There were four terms of judgment, alwayers invoking exceptions of procedure. On March 22nd 2007, the Court admitted an exception of unconstitutionality and sent the case to the Constitutional Court. The case was adjourned. On February 27th 2006, Adrian Nastase pleaded not guilty and argued that his case was counterfeit and that he would prove his innocence in Court.
In the second case, in which he was sent on trial (on May 31 2007) for having perpetrated the crime of giving bribery, the first term was set for June 25th 2007.


I. Justice under the assaults of politics

Lately, both the national and international actors expressed their worries as regards the frailty of the political will in the fight against corruption, as well as the reduced pace of reforms. Media drew public opinion attention upon breaches of the independence of prosecutors at the highest level, attempts to influence the process of law endorsement at the level of the Ministry of Justice, allegations of certain MPs and Government officials against the activity of the National Anticorruption Directorate, abuses in the human resources policy at the level of the Ministry of Justice and the National Administration of Penitentiaries.

During the last weeks, Romanian criminal justice has been subject to pressures having as main target the intimidation and obstruction of investigations against politicians. The Government (through its Prime Minister, Mr. Calin Popescu Tariceanu and the minister of justice, Tudor Chiuariu) and the Parliament (through the presidents of the two Chambers, Mr. Bogdan Olteanu and Mr. Nicolae Vacaroiu) have launched virulent attacks against the newly gained independence of prosecutors. Thus, several tensed moments sequentially occurred within a short period of time, as follows:

• May 7. The minister of justice requests the dismissal of Mr. Paul Dumitriu, head of MoJ Inspection Body, as a result of the latter's persistence to carry out verifications on Iasi Bailiffs' Chamber, as well as of the conclusions he presented following an investigation, which showed that the NAP general director intervened for the employment of his relatives within NAP structure.
• May 8. The minister of justice files a request to the Superior Council of Magistracy asking for the revocation of Mr. Doru Tulus, head of NAD Section II. The request was poorly reasoned and followed by a gesture without precedent: the SCM session was monitored by Western European diplomats, sign of tacit solidarity to the gained NAD independence in investigating politicians. The Section run by Mr. Tulus investigates criminal cases concerning politicians like: Marko Bela (President of the Hungarians' Democratic Union in Romania), Dan Voiculescu (President of the Conservative Party), Verestoy Attila (senator) etc.
• May 10. The president of the Chambers of Deputies, Mr. Bogdan Olteanu, member of the National Liberal Party, calls upon several prosecutors to the Parliament for an interrogatory. The General Prosecutor, Mrs. Laura Codruta Kovesi, and the NAD chief prosecutor, Mr. Daniel Morar, refuse to attend the meeting and claim to the SCM attempts of interference in justice matters.
• May 10. Following media's pressure, the minister of justice reasons the dismissal of Mr. Sorin Dumitrascu, NAP deputy general director, on April 26th. The reasons invoked refer to an alleged incompatibility between the public manager quality and the leading position. However, the real reason was the appointment in this position of Mr. Gheorghe Spaiuc, a prosecutor coming from Iasi, husband of a newly appointed personal advisor of the minister of education.
• May 25. Prime Minister Calin Popescu Tariceanu publicly expresses accusations against the general prosecutor on grounds that she "did not bother" to inform the Government on a case concerning violence in schools. This was just one more populist theme used as a pretext for giving another warning to Kovesi.
• May 25. One more negative signal for the prosecutors: several ministers complain that NAD prosecutors are unjustifiably getting involved in the activity of their ministries, thus "censuring the political decision". The deputy Prime Minister, Mr. Marko Bela, president of Hungarians' Democratic Union in Romania (UDMR) - himself investigated by the prosecutors - threatened that he would be leaving the Government, should no measures be taken against NAD. There are no public statements to support this. However, the information was launched by media based on "reliable sources", thus enhancing the political pressure on prosecutors.
• May 29. The president of the Senate, Nicolae Vacaroiu, makes tough statements against prosecutor Doru Tulus, due to a routine and legal request issued within preliminary investigations on Mr. Verestoy Attila, UDMR senator. As a result, lots of accusations are cascading, obviously disproportionate as compared to the harmless content of the request which regarded information for preliminary investigations and the submittal of which was mandatory for NAD, as it followed a complaint.
• May 30. The leadership of the Chambers of Deputies joins the Senate's allegations against NAD leaders, who are accused of "having dared" to ask for information on how a certain law has been voted. The UDMR senator in question is suspected of having had significant winnings from the stock exchange due to inside information.
• June 12. During a meeting with the President of the European Commission, the Prime Minister of Romania complained that prosecutors do not inform him about the ministers that are under criminal investigations, but inform the President of Romania. There is no legal provision which provides the obligation to inform either the prime minister, or the president, with respect to criminal investigations, not even if ministers are involved. It is the duty of the ministers to inform the prime minister. However, Law 115/1996 provides for the informing of a commission set up at the Presidency, which is compelled by the law to issue a recommendation regarding the criminal proceedings regarding the ministers in office. The notification of this commission was always made public, so the prime minister found out about the criminal proceedings concerning ministers once with the president and with the general public. Therefore, one cannot understand why the prime minister wants to be separately informed by the prosecutors.
• June 13. The Hungarian state secretary, Mr. Laszlo Szoke, expresses his concerns on the criminal investigations initiated in Romania against some top level UDMR representatives: the minister of communications, Mr. Zsolt Nagy, and four other officials from local administration. This statement was included in a press release published on website of the Hungarian Ministry of Foreign Affairs and has also been sent to the Romanian Embassy in Budapest. This press release did nothing but enhance the political pressures which nowadays Romanian prosecutors who investigate high level corruption cases are up against; not to mention the very unusual procedure for an EU Member State to make statements on judicial investigations carried out in another Member State, especially when corruption suspicions are concerned, or the implied suggestion that justice may take into account ethnic criteria.


CONCLUSION

The US Ambassador to Romania declared in a BBC interview that: "Corruption is still a considerable problem in Romania, because it affects also the business environment, and the health system, and the public administration". A large number of international reports, out of which the 2006 EC Monitoring Reports, the National Corruption Report 2007 from Transparency International, Freedom House reports - Nations in Transit and Freedom in the World showed the following:
o "the judiciary is the most problematic sector in Romania;
o the steps taken in the field of fight against corruption were hindered by political conflicts between the state authorities and by contradictory political signals;
o the disciplinary mechanisms for public officials and magistrates are inefficient and there are no sanctions applied for conflicts of interests."

The incoherent management at NAP level generates significant delays in the implementation of the Strategy for the Development of the Penitentiary Service 2007 - 2010 and no developments in the reform process. The new Law on the enforcement of imprisonment penalties cannot be applied as the necessary methodology framework has not been finalized (delays in issuing the orders of the minister of justice and the decisions of the NAP general director provided by the law). The reports on the state of Romanian penitentiaries have emphasized deficiencies as regards the observance of human rights (poor detention conditions in some penitentiaries, individual cases of physical and verbal abuses against detainees - APADOR-CH), the human resources policy (more than 50% of the employees are relatives - MoJ Report no. 252122 of January 22nd 2007), as well as the poor performance of the duties pertaining to the penitentiary service for social reintegration of detainees (NAP sociological research - www.anp-just.ro).
The judiciary is now subject to provisional and uncertain times and its direction is unknown, in a moment in a moment when the reform should have reached its peak. The system is now propelled by mere inertia, no more than following the objectives and mechanisms previously set up (e.g. endowments, international programs, court management, drafting new procedural rules). No new relevant objectives have been set up after the change in Government. Worse still, the measures pending are not being implemented according to the commitments undertaken. No progress in the judiciary reform, including the areas monitored by the European Commission within the cooperation and verification mechanism, has been registered since April 2007.
Moreover, no steps have been taken to set up the main directions for continuing the reform of the judiciary. The Strategy for the Reform of the Judiciary, drafted in 2005 jointly with the Action Plan for its implementation, covers the period until the end of 2007. Since the reform is far from being accomplished, a convincing continuation thereof is unconceivable without drafting a strategic paper for the future, upon wide consultations.
The Ministry of Justice has not taken yet a clear and reasoned stand on certain matters fundamental to the judiciary reform such as: the version of the new Criminal Code which will be promoted (the 2004 version was not accepted by the practitioners and a new draft of the Code was launched for public debates in March 2007); the institution that is to administer courts' budget, since the High Court which is to take over this task starting January 1st, 2008 does not want to have such a competence, while the Monitoring Report on the judiciary, set up by EU experts in 2006, recommends the administering of the budgets by MoJ); or the appointment procedure for the key leading positions in the Public Prosecution Office. Consequently, no measures have been taken to address the above mentioned issues. The lack of a clear stand on these matters eliminates from the start the possibility of having adequate public debates and may lead to the adoption of arbitrary or superficial decisions, as it has frequently happened lately.
All the above mentioned deficiencies generated tough reactions of Romania's foreign partners. European Commission expressed its concern as regards the slowed pace of reforms and warned about the risk of triggering the safeguard clause. Even with the beginning of 2006 an EU expert has warned of the risk of diminishing the power of the political will to fight against corruption. Furthermore, Mr. Markus Ferber, German MEP, requested the triggering of the safeguard clause on justice, in a letter addressed to Mr. Franco Frattini, commissioner for justice, freedom and security. Moreover, in a meeting with NAD chief prosecutor, Mr. Daniel Morar, US Ambassador to Romania, Mr. Nicholas Taubman stated that: "recent developments had raised questions both in Washington and in many European capitals about the current direction of Romania's anti-corruption efforts".

 

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