On 19 November 2001, in a continuous effort in its fight against corruption, Romania ratified the Criminal Law Convention on Corruption adopted at Strasbourg on 27 January 1999 through Law No 27/2002. The convention incorporates provisions concerning aiding and abetting, immunity, criteria for determining the jurisdiction of States, liability of legal persons, the setting up of specialised anti-corruption bodies, protection of people collaborating with investigating or prosecuting authorities, gathering of evidence and confiscation of proceeds. On the same day, 19 November 2001, Romania ratified the Civil Law Convention on Corruption adopted at Strasbourg on 4 November 1999 through Law No 147/2002. The Convention deals with compensation for damage, liability, contributory negligence, contracts’ validity, protection of employees who report corruption, clarity and accuracy of accounts and audits, acquisition of evidence, court orders to preserve the assets necessary for the execution of the final judgment and for the maintenance of the status quo pending resolution of the points at issue and international co-operation.
Two years later, on 9 December 2003, Romania signed up to a third international convention, the United Nations Convention against Corruption, through Law No 365/2004. The convention offered a new framework for effective action and international co-operation by introducing a comprehensive set of standards, measures and rules that all countries can apply in order to strengthen their legal and regulatory regimes to fight corruption. It calls for preventive measures and the criminalisation of the most prevalent forms of corruption in both public and private sectors. The convention makes a major breakthrough by requiring Member States to return assets obtained through corruption to the country from which they were stolen.
The Romanian Criminal Code (RCC) is the main national legislation governing anti-corruption offences. It provides offences such as taking a bribe, giving a bribe, influence-peddling and buying influence. Beyond these typical corruption offences, Law No 78/2000 on preventing, discovering and sanctioning the corruption acts, provides some aggravated forms of the anti-corruption offences provided in the RCC, the so-called assimilated corruption offences (eg, abuse of office), as well as crimes against the financial interests of the EU.
In 2015, the Ministry of Internal Affairs issued a guideline on anti-corruption informing its employees of the corruption, legislation, potential sanctions and reporting methods.
Also, in 2015, the Superior Council of Magistracy issued a guideline on good practices in the field of tax evasion within the project "Improving the capacity of Romanian judges and prosecutors to fight corruption and economic and financial crime". The guideline contains judicial practice of Romanian courts and valuable interpretations of ambiguous concepts used by the legislator in order to constitute reference points for the magistrates involved in solving such cases.
In addition, the High Court of Cassation and Justice has discretion to issue judgments reviewing the uniform interpretation of law and preliminary rulings to interpret points of law. Also, the Romanian Constitutional Court, when deciding on the constitutionality of a legal provision, may issue an interpreting decision if in breach of the Romanian Constitution. Both decisions have binding effect for future and ongoing cases.
On 3 July 2019, the Romanian Constitutional Court decided that the corruption cases tried by the High Court of Cassation and Justice in first instance must be tried by specialised panels of three judges. This is to protect the right to a fair trial and judicial impartiality. The major impact of the Constitutional Court’s mandatory decision is that all cases that had not yet reached final judgment by 23 January 2019 must be retried by a competent panel of judges.
Over the course of 2019, the Government and Parliament increased their activity on decision-making and legislative activity on the RCC and Romanian Criminal Procedure Code (RCPC), on corruption laws, on integrity laws (incompatibilities, conflicts of interest, unjustified wealth) and the laws of justice. These changes were heavily criticised, including by the European Commission and the Venice Commission and reflected in the May referendum. The Prime Minister declared that the Government would follow the results and would abstain from adopting emergency ordinances in the area of justice. Many amendments continued to raise concerns on the grounds of their impact, especially on the corruption-related offences. The opposition parties and the President of Romania challenged these amendments before the Constitutional Court, and it ruled in July 2019 that the amendments are unconstitutional and not in line with its earlier decisions.
Another key amendment was to anti-money laundering legislation. On 21 July 2019, Law No 129/2019 for Preventing and Combating Money Laundering and Terrorism Financing (Law 129/2019) entered into force, transposing the fourth Anti-Money Laundering Directive. The new law provides new regulatory requirements for legal entities, such as the obligation to file a declaration of beneficial owners when registering with the National Trade Registry Office, annually and every time a modification regarding the beneficial owner occurs. Legal entities that are already established must file declarations of beneficial owners by July 2020. Failure to meet this deadline may result in a fine of between RON5,000 and RON10,000. Supplementary "know your client" measures are required in transactions and business relations with publicly exposed persons or clients whose beneficial owners are publicly exposed persons. The obliged entities are required to file a report for suspicious transactions as defined by Article 6 of Law No 129/2019 and for any cash transactions that are equal to EUR10,000 or more. The thresholds of the fines provided in Law No 129/2019 are significantly higher than the ones provided in the previous anti-money laundering law (ie, Law No 656/2002) and can reach up to 10% of their annual turnover.
Romanian criminal law incriminates both active and passive bribery, as well as influence-peddling and buying influence. These corruption offences are provided by Article 289-292 of the RCC, with aggravated forms provided in Law 78/2000. The corruption offences apply in both the public and private sector.
In Romania, a bribe is any form of currency (cash, bank transfer or even a shammed loan) or benefit (material or non-material goods) that is not legally due to the perpetrator, such as gifts, favours, travel expenses, meals, employment opportunities, advantages for family and friends etc. However, depending on the value of the gifts or hospitality given to a public official, these may not be deemed as giving and receiving a bribe, as long as they are not given in exchange for the public official breaching his or her work-related duties. To this extent, certain categories of public officials must report, within 30 days from receipt, any direct or indirect donations or gifts received in connection with their functions or duties, except for those which have a symbolic value.
Taking a bribe is defined by the RCC as the action of a public servant who, directly or indirectly, for themselves or on behalf of others, solicits or receives money or other undue benefits or accepts a promise of money or benefits, in exchange for performing, not performing, speeding up or delaying the performance of an action which falls under the purview of their professional duties or with respect to the performance of an action contrary to their professional duties. The law does not require the expected result actually to occur and it is sufficient to propose or accept an unlawful advantage in order to qualify the deed as a bribery offence.
The offence of taking a bribe also has an aggravated form (punishment limits increased by a half), provided by Law 78/2000, when committed by a person who:
Corruption offences require intent, either direct or indirect. All undue money, valuables or any other benefits received must be seized, and when these can no longer be located, the equivalent amount of money will be seized.
A public official is defined as the person who, on a permanent or temporary basis, with or without remuneration:
The RCC also incriminates the taking of a bribe committed by an assimilated public official defined as a person who supplies a public-interest service, which has been vested by the public authorities or is subject to public authorities’ control or supervision (eg, doctors, pharmacists, public notaries, executors).
Bribery also applies in relation to foreign officials, unless international agreements to which Romania is party provide otherwise. A foreign official is defined as:
According to the RCC, bribery also applies to "private officials", who carry out, on a permanent or on a temporary basis, with or without a remuneration, a duty, irrespective of its nature, (i) in the service of a natural person as assimilated public official or (ii) within any legal entity. Bribery in the private sector is an attenuated form of bribery, so the limits of the punishment are reduced by a third.
The RCC also incriminates the crime of giving a bribe as the act of promising, offering or giving money or other benefits to a public official, directly or indirectly, for oneself or for another, in relation to performing, not performing, expediting or delaying performance of an act within the public servant’s prerogatives, or an act contrary to those prerogatives.
Influence-peddling is incriminated by the RCC and defined as the act of soliciting, receiving or accepting the promise of money or other benefits, whether directly or indirectly, for oneself or for another, committed by a person who has influence or who alleges that they have influence over a public servant and who promises they will persuade the latter to perform, fail to perform, speed up or delay the performance of an act that falls under the latter’s professional duties or to perform an act contrary to those duties.
The person buying influence is also incriminated by the RCC if he or she promises, supplies or gives money or other benefits, for themselves or for another, whether directly or indirectly, to a person who has influence or who alleges they have influence over a public servant to persuade the latter to perform, fail to perform, speed up or delay the performance of an act that falls under the latter’s professional duties or to perform an act contrary to those duties.
The references made on bribery (see under the heading Bribery) regarding intent, seizing assets, foreign public officials and assimilated public officials are also applicable in the case of influence-peddling and buying influence.
Law No 241 from 2005 on prevention and combating tax evasion provides offences related to inaccurate financial record-keeping. Article 9 a), b) and c) from Law 241/2005 are the most frequently charged forms of tax evasion in practice. The include the following deeds, perpetrated with the purpose of avoiding paying tax liabilities, and are punishable with two to eight years’ imprisonment and a ban on exercising certain rights:
For damages exceeding EUR100,000, the punishment limits are seven to 13 years’ imprisonment, while for damages exceeding EUR500,000, the punishment limits are nine to 15 years’ imprisonment. Law 241/2005 provides a special reduction of punishment limits (by half) if the defendant repairs the damage (in full) during the criminal investigation or before the first court hearing on the merits.
The RCC and the special laws incriminate other unlawful conducts of or in relation to public officials, other than the corruption offences presented here. A brief analysis of these offences is provided by the RCC and Law 78/2000, as follows.
Abuse of Office
The action of a public official who, while exercising his or her work-related duties, fails to implement an act or implements it faultily, causing damage or violating the legitimate rights or interests of a natural or a legal entity, is punishable with two to seven years’ imprisonment. Law 78/2000 provides an aggravated form of abuse of office (punishment limits increased by a third) if the public official obtained for himself or herself or for another money, goods or other undue advantages.
A public official may also commit the offence of embezzlement if he or she accepts, uses, traffics, on their own or on another person’s behalf, money, valuables or any other assets managed or administrated by the public official. The punishment limits for this offence are two to seven years’ imprisonment. If the actions provided under the offences caused a material damage of more than RON2,000,000 (approximately EUR425,000), the punishment limits will be increased by a half.
The Conflict of Interests (Using an Office to Favour Other Persons)
The deed of the public official who, in the performance of his or her duties, performs an act by which a material gain is obtained for the official himself or herself, for his or her spouse, for a relative or an affiliate up to the second degree, is punishable by one to five years’ imprisonment. The offence does not apply to situations when the act or decision refers to (i) issuing, approving or adopting normative acts; or (ii) the exercise of a right recognised by law or while performing an obligation imposed by the law, with the observance of the conditions and limits provided by the latter.
Corruption-related Criminal Offences
Law 78/2000 incriminates aggravated forms of offences provided by the RCC, but also new ones if they are committed for the purpose of obtaining money, goods or other undue advantages for himself or herself, or for another person, as follows:
These offences are punishable with three to ten years’ imprisonment.
Further, the actions of (i) performing financial operations as trade activities, incompatible with the position, duty or task which is carried out by a person or contracting financial transactions using the information obtained by virtue of the position, duty or task and (ii) using, in any way, directly or indirectly, the information that is not meant for publicity, or allowing the access of unauthorised persons to this information, is punishable with one to five years’ imprisonment.
Offences against the Financial Interests of the EU
Romania has seen a major increase in the prosecution of offences against the financial interests of the EU, incriminated by Law 78/2000.
The action of using or presenting in bad faith false, inaccurate or incomplete documents or statements, which has as a result the illegal obtaining of funds from the general budget of the European Union or from the budgets administrated by or on behalf of the European Union, is punishable by two to seven years’ imprisonment.
The same penalty applies to the deliberate omission to provide the information required according to the law, with the purpose of obtaining funds from the general budget of the European Union or from the budgets administrated by or on behalf of the European Union.
The action of changing, without complying with the legal provisions, the destination of the funds obtained from the general budget of the European Union or from the budgets administrated by or on behalf of the European Union is punishable by one to five years’ imprisonment.
The same penalty applies to the action of changing the destination of a legally obtained benefit, without complying with the legal provisions, if it results in the illegal diminishing of the resources of the general budget of the European Union or of the budgets administrated by or behalf of the European Union.
The action of using or presenting in bad faith false, inaccurate or incomplete documents or statements, if it results in the illegal diminishing of the resources of the general budget of the European Union or of the budgets administrated by or behalf of the European Union, is punishable by two to seven years’ imprisonment.
The same penalty applies to the deliberate omission to provide the information required according to the law, if it results in the illegal diminishing of the resources of the general budget of the European Union or of the budgets administrated by or behalf of the European Union.
According to the provisions for bribery and corruption offences, the bribe or the undue benefit may be requested, received or accepted by the public official either directly or by means of an intermediary. When the corruption offences are committed by means of intermediaries, the public official will be held criminally liable as an author of the offence and the intermediaries may be held criminally liable for aiding the corruption offences. The limits of the punishment for the aider are the same as those for the perpetrator of the offence. However, for the purposes of serving the sentence, the court will take into account the contribution of each participant to the offence.
The statute of limitations ranges between three and 15 years, depending on the maximum limit of penalty for each offence (eg, eight years if the punishment limits are between five and ten years). The punishment limits for corruption offences are usually between two and seven years, except for the offence of taking a bribe, which is punishable by three to ten years’ imprisonment (see 3.1 Penalties on Conviction for penalties on conviction).
The statute of limitations for corruption offences is eight years from the date the offence is committed.
In the case of aggravating factors or forms of the offences (see 1.2 Classification and Constituent Elements, 3.1 Penalties on Conviction and 3.2 Guidelines Applicable to the Assessment of Penalties) when the punishment limits exceed ten years’ imprisonment (but are below 20 years), the general term of the statute of limitations is ten years.
The statute of limitations can be interrupted by any procedural act in the case and a new statute of limitations' term runs after each interruption, but not for more than 16 years in total.
Generally, Romanian criminal law applies to offences committed on Romanian territory. An offence is construed to have been committed on Romanian territory if the offence was perpetrated in Romania, an act of instigation or aiding and abetting was performed in Romania, or the results of an offence occurred (even if in part) on Romanian territory.
Additionally, in certain situations (ie, where the punishment limits for the alleged crime exceed ten years’ imprisonment, dual criminality or the crime was committed in a place that is not subject to any state’s jurisdiction), the Romanian Criminal Code also applies where a Romanian citizen or Romanian legal entity commits a criminal offence abroad (unless an applicable international treaty says otherwise).
Pursuant to the RCC, legal entities, except for state and public authorities, may be held criminally liable for offences committed in the performance of the legal entity’s object of activity, in its interest, or on its behalf. Public institutions, such as state-owned hospitals, will not be held criminally liable for actions taken in the exercise of their public role/function, but can be criminally liable for offences committed while acting outside such public functions.
The scope of individuals who may trigger criminal liability of a corporate entity is very broad – it includes legal representatives (eg, a director or manager), employees, agents and even third parties who commit criminal offences for the benefit, or in the name, of the entity. In practice, for a corporate entity to be criminally liable, the investigative body must prove that the entity benefited from the criminal activity of the individual perpetrating the offence or that the conduct was performed by the individual within the scope of his or her services for the corporate entity (whether by way of an employment contract, services contract, or otherwise).
Corporate criminal liability extends to any offence committed in the performance of the legal entity’s object of activity, in its interest, or on its behalf, as there is no closed catalogue of offences for corporate criminal liability. However, by their nature, certain offences cannot be committed by a legal entity (eg, false testimony, prison escape).
According to the RCC, the criminal liability of legal entities does not exclude the criminal liability of the individual(s) participating in the commission of the same act. This means that both the legal entity and individual may be held responsible for the same offence. The proceedings are usually carried out as one, for both the individual and the corporate entity, but they can also be conducted independently. Moreover, due to the fault-based liability system, it is possible that the condition of fault be met with only one of the two (ie, the company may be convicted, while the individual is acquitted or vice versa).
In cases of loss of legal personality due to merger, absorption or demerger after an offence is committed, the criminal liability will be transferred to the successor of the company, respectively:
The RCC does not provide special defences for bribery and corruption offences. In order to trigger one’s criminal liability for perpetrating any offence (not just corruption offences), both the objective side (actus reus) and the subjective side (mens rea) of the offence must be met.
Considering that most corruption offences, including bribery and influence-peddling, must be committed with intent (either direct or indirect), a potential defence would be to challenge the subjective element of the offence. For companies, for example, if the defendants decide to challenge the subjective element of the offence, it is necessary to demonstrate clearly the company’s lack of intent by identifying the internal compliance efforts the corporate entity took to prevent its employees from committing unlawful acts. A company’s corporate culture may, depending on the circumstances effectively at play, lead the investigative body not to trigger its criminal liability or, at least, it may constitute a judiciary mitigating factor, in which case the penalty imposed could be reduced.
In addition, general defences provided by the RCC may also be used (especially in the case of individuals): (i) justifying causes (eg, self-defence, exercising a right or fulfilment of an obligation) and (ii) non-imputability causes (ie, physical duress, moral duress, error).
There is no clear exception to the defences described in 2.1 Defences. In practice, in relation to legal entities, prosecutors focus only on the objective side of the offence and fail to consider the subjective side. To trigger corporate criminal liability, prosecutors focus on proving that the company either benefited from the criminal activity of the individual perpetrating the offence or that the conduct was performed by the individual within the scope of his or her services for the company (by way of an employment contract, services contract or otherwise).
The RCC does not provide any de minimis exceptions for bribery and corruption offences. However, if the prosecutor ascertains that there is no public interest in prosecuting the corruption offence, he or she may decide to waive prosecution, as long as the conditions provided by the RCPC are met. The waiver of prosecution is not an option for the prosecutor in the case of the offence of taking a bribe, irrespective of the value of the bribe, because the punishment limits for this offence (ie, three to ten years’ imprisonment) exceed the maximum threshold for which such a measure can be ordered (ie, seven years’ imprisonment).
Romanian criminal law does not exempt any sectors or industries from the above offences. However, the state and the public authorities cannot be held criminally liable for any offences, while public institutions cannot be held criminally liable for offences committed in the performance of an activity that cannot be performed in the private sector.
For certain corruption offences (ie, giving a bribe and buying influence), a person (physical or legal) who reports his or her participation in a criminal offence will not be punished, if the self-reporting occurs before law enforcement authorities become aware (by any other means) of the offence. The self-reporter will not be charged for the commission of the offence, but will become a witness against the person who either received a bribe or peddled his or her influence.
The Romanian criminal law also provides leniency for individuals who report on others and help the authorities to trigger their criminal liability. In this situation, the individuals receive a statutorily provided reduction (by half) of the punishment limits for the charged offence.
In the case of legal entities, although there is no legal requirement for law-enforcement authorities to consider a company’s anti-bribery policy when assessing criminal liability, it may, however, act as a mitigating factor before a court of law if the corporate entity has diligently taken all necessary measures to prevent employees or third parties from engaging in any misconduct. Romanian law provides that a court may consider certain circumstances related to the offence, which are indicative of a reduced level of risk/threat posed by the offender, as a judicial mitigating factor, in which case the penalty imposed could be reduced.
Penalties for Individuals
Most corruption offences, including giving a bribe, influence-peddling and buying influence, are punishable by two to seven years’ imprisonment and a ban from exercising certain rights. The offence of taking a bribe is more severely sanctioned, being punishable by three to ten years’ imprisonment and a ban from exercising the right to hold a public office or to exercise the profession or the activity in relation to which they committed the violation. The thresholds of two to seven years’ imprisonment are also provided for the offences of abuse of office and embezzlement.
The punishment limits for the corruption offences may be increased by up to a half in the event that an aggravated form is committed (eg, the offence is committed by a member of the Parliament) or they can be reduced by a third in a case where an attenuated form is committed (eg, the offence is committed in relation to a "private official"). Ancillary penalties (effective after conviction) and auxiliary penalties (effective when serving the sentence), such as the ban to exercise certain rights for a period of maximum of five years (eg, the right to elect or be elected in a public position, the right to hold a public office), may also apply.
Tax evasion is punishable with two to eight years’ imprisonment. The limits increase if the damages caused by perpetrating the offence exceed a certain threshold. If the damage exceeds EUR100,000, the punishment limits are seven to 13 years’ imprisonment, and if the damage exceeds EUR500,000, the punishment limits are nine to 15 years’ imprisonment.
Penalties for Legal Entities
The same punishment limits apply to legal entities. However, the main penalty for legal entities is a fine, calculated on the basis of the fine-days system. The amount of a fine-day ranges from RON100 (approximately EUR20) to RON5,000 (approximately EUR1,100), and will be established by the court considering the turnover value of assets, and other obligations of the legal entity.
The fine for taking a bribe, giving a bribe, influence-peddling, buying influence, embezzlement and abuse of office, ranges from RON18,000 (approximately EUR3,800) and RON1,500,000 (approximately EUR320,000).
Depending of the amount of damage caused by the offence, for tax evasion, the fine ranges from RON18,000 (approximately EUR3,800) and RON2,100,000 (approximately EUR450,000).
For all these offences, the penalty can be increased by a third (up to a maximum of RON3,000,000) if the company committed the crime with the purpose of obtaining a financial gain.
Ancillary penalties (effective after conviction) include dissolution of the company and possibly also the suspension of the activities of the company, shutting down offices of the company or prohibition to participate in public procurement procedures.
The RCC and the special laws provide a minimum and maximum penalty for each offence. Courts must consider these limits when sentencing an individual or legal entity.
The gravity of the offence and the threat posed by the convicted individual or company determine the severity and type of penalty. The following criteria are used to assess the gravity and threat:
The court must also consider the provisions regarding the continuous form of the offence, the occurrence of multiple offences, the existence of aggravated or mitigating factors, repeated offences etc.
Repeated offences are punished more severely and the penalty is established based on two conditions:
Romanian criminal law does not impose duties on the private sector to prevent corruption offences. There is currently no obligation for legal entities operating in Romania to have anti-bribery policies or other compliance policies in place. However, they can act as a mitigating factor, which may result in reducing or excluding the company’s liability. Depending on the size of the company and the industry in which it operates, it is often considered a sign of healthy corporate culture to have an anti-corruption policy in place (whether on a standalone basis or incorporated into, for example, the Internal Regulation/Employee Handbook of the company).
In some situations, companies and individuals must report crimes, and potential crimes, to the police. For instance, any person holding a managerial position (or an oversight authority) within a public authority or entity that, in the exercise of his or her responsibilities, has acquired knowledge of the commission of a criminal offence that warrants a criminal investigation, must immediately refer the matter to the relevant criminal investigation body.
This obligation also applies to any person mandated by public authorities to perform (or oversee) a public-interest service, who has, in exercising his or her responsibilities, acquired knowledge of the commission of a crime. In general, all individuals must report knowledge of any offence against human life immediately.
Additionally, people with control functions prescribed by law must notify enforcement authorities if they become aware of information relating to potential corruption or corruption-assimilated offences. Failure to comply with these obligations is in itself a criminal offence and could result in prosecution.
Although whistle-blowing in the private sector is not broadly regulated, whistle-blowing in the public sector is. The law protects individuals who report a breach of law committed within a public authority or state-owned company. Reporting misconduct cannot trigger disciplinary misconduct against the employee, except when the reporting is purely vexatious or in bad faith.
Under the public sector legislation, a whistle-blower may report misconduct relating to a defined list of crimes, including corruption and assimilated offences, offences against the financial interests of the European Union, discriminatory treatment or practices, public procurement and non-reimbursable financing.
Whistle-blowers in the public sector benefit from a presumption of good faith. Upon a request from a whistle-blower subject to a disciplinary investigation, the authority or entity must invite the press or broadcast media and a representative of the union to the disciplinary hearing. Any sanction imposed against a good-faith whistle-blower in the public sector is likely to be overturned.
Financial incentive schemes for whistle-blowers do not exist under Romanian law. However, the whistle-blowers who have committed offences receive a statutorily provided reduction (by half) of the punishment limits for the charged offence if they report on others and help the authorities to trigger their criminal liability.
The relevant provisions regarding whistle-blowing can be found in Law No 571/2004 and Law No 682/2002. In addition, more general provisions regarding whistle-blowing can be found in the RCC and RCPC.
Romanian criminal law only provides for criminal enforcement in the case of bribery and corruption offences. It does not provide for civil and administrative enforcement, as the main penalty in the case of bribery and corruption offences is imprisonment.
In the case of bribery and corruption offences, the ancillary penalty of the ban to exercise certain rights is mandatory. Other ancillary penalties may apply, the decision being at the court’s discretion.
The enforcement body investigating high-profile bribery and corruption offences in Romania is the National Anti-corruption Directorate (DNA). The DNA is a specialised agency within the Prosecutors’ Office attached to the High Court of Cassation and Justice. Usually, the DNA has jurisdiction and investigates bribery and corruption offences committed by public officials (either local or foreign), irrespective of the value of the damage caused or the value of the asset that is object of the bribery or corruption offence. The DNA also has jurisdiction and investigates bribery and corruption offences committed by individuals or legal entities, if the value of the damage exceeds EUR200,000 or the value of the asset that is object of the bribery or corruption offence exceeds EUR10,000.
The other bribery and corruption offences are investigated by the Prosecutors’ Office attached to the ordinary court, tribunals or courts of appeal (depending on their specific personal and material jurisdiction provided by the law).
Criminal investigations are conducted by case-prosecutors with the support of judicial police officers and specialised criminal investigation bodies (eg, in the case of crimes committed by the military).
In the event that there is a reasonable suspicion in respect of the preparation or perpetration of an offence and the prosecutor has grounds to believe that an object or document may serve as evidence in the criminal file, he or she has discretion to order a person to hand over the object or document that is in his or her possession. Failure to comply may lead to the prosecutor ordering a forced hand-over of the object or document, or even to request that the court issue a search warrant. Any interested party can challenge the order for forced hand-over of objects or documents in a criminal court.
In certain circumstances, the failure to comply with the request received from the prosecutor may lead to criminal prosecution for the offence of obstruction of justice, provided by Article 271 from the RCC.
The prosecutor has discretion to enter into a plea agreement with the defendant if the maximum punishment provided by the law for the offence (including cases of multiple offences) committed by the defendant is 15 years and there is sufficient evidence that the defendant committed the offence(s). In this case, the defendant benefits from a statutory reduction by a third of the punishment limits provided by the law and he or she will start "negotiating" with the prosecutor in respect of (i) the type of punishment (eg, fine, imprisonment), (ii) the level of punishment (under the reduced limits) and (iii) the type of enforcement (eg, imprisonment, suspended sentence). The plea agreement must be forwarded to a competent court of law that has discretion either to grant the plea agreement or to dismiss the plea agreement and send the file back to the prosecutor in order to restart the criminal investigation. The decision ruled by the court can be challenged at the superior court.
Generally, Romanian prosecution bodies have jurisdiction over offences committed on Romanian territory. An offence is construed to have been committed on Romanian territory if the offence was perpetrated in Romania, an act of instigation or aiding and abetting was performed in Romania, or the results of an offence occurred (even if in part) on Romanian territory.
Additionally, in certain situations (ie, where the punishment limits for the alleged crime exceed ten years’ imprisonment, dual criminality or the crime was committed in a place that is not subject to any state’s jurisdiction), the Romanian prosecution bodies have jurisdiction over offences committed abroad by a Romanian citizen or Romanian legal entity (unless an applicable international treaty says otherwise).
Although the Romanian prosecution bodies do not have jurisdiction to perform investigation activities in other countries, based on the convention on mutual assistance in criminal matters, they have the possibility to request assistance from similar prosecution bodies from the countries where they want to perform such activities. For example, they can request that the other prosecution bodies interview witnesses/suspects/defendants, serve subpoenas, perform dawn raids, etc.
The most recent landmark investigation relates to corruption in the information technology (IT) sector. The DNA alleges that the general manager of the local branch of a leading global IT company received an EUR870,000 bribe from the representatives of partner IT companies in exchange for better offers for company products (mainly IT licences). According to the DNA, the partner companies used these special offers to win in public tenders.
The IT sector knows another investigation where the DNA claims that an individual requested EUR1,000,000 in order to peddle her influence in order to persuade a high representative of the Government to approve certain documentation in relation to IT licences for the National Ministry of Education. The defendant was sent to trial in January 2019 and the file is currently in the trial phase at Bucharest Tribunal.
In another high-profile case, the DNA alleges that three public officials of the National Agency for Fiscal Administration (ANAF) received bribes in order to grant protection and permission for a petroleum company to perform tax evasion. The former president of ANAF received a EUR1,200,000 bribe, the former vice-president received a EUR960,000 bribe, and another public official a EUR300,000 bribe. The defendants were sent to trial in August 2019 and the file is currently in the trial phase at Bucharest Court of Appeal. In May 2019, the same former president of ANAF was sentenced to five years’ imprisonment because he received RON12,500,000 to peddle his influence and ensure the conclusion of certain agreements between ANAF and a private company.
The transportation sector was also targeted, as the DNA alleges that EUR20,000,000 in bribes were paid by an Austrian consortium of companies to high Romanian officials in respect of the rehabilitation of railway sectors. A former minister of the Ministry of Finance, an employee of the Ministry of Finance, the administrator of a legal entity, a state secretary of the Ministry of Transports and the vice-president of a political party at the time were sent to trial in November 2019 and the file is currently in the trial phase at High Court of Cassation and Justice. The general manager of the Austrian consortium of companies agreed to conclude a guilty plea and received a three-year suspended sentence.
Besides the case of the former president of ANAF who was sentenced to five years’ imprisonment and the case of the general manager of the Austrian consortium of companies who pleaded guilty and received a three-year suspended sentence, the other cases presented above are either under criminal investigation or have been sent to trial and a final decision has not yet been ruled.
During the last two years, the Romanian justice system has been subject to a transformation which has sometimes proved to be contrary to EU principles. In 2019, the Commission issued a report on ”the Progress in Romania under the Co-operation and Verification Mechanism”. This report provides recommendations for Romania in order for it to reach the objectives agreed.
The Commission confirmed a digression from the progress made in previous years and stated that the evolution of the situation in the first months of 2019 was a source of great concern. The Commission will continue to monitor the situation in Romania and to ensure that the recommendations are observed.
Despite these setbacks, the fight against corruption continued during 2019. According to a report issued by the Ministry of Justice, at the beginning of 2019 there were 417 pending cases. By the end of July 2019, the total number of cases was 627 of which 269 were solved by the courts. As a result, 112 individuals were convicted for corruption offences.
Some changes have been announced in relation to the Criminal Code that may affect both individuals and legal entities. One of these targets is the reduction of the statute of limitations for corruption crimes from eight to six years. The aim of these changes is to sanction the slow manner in which criminal investigations have been performed in Romania in recent years.
Another change that may affect legal entities relates to tax-evasion offences. The proposed changes provide that, if a perpetrator repays the damage caused to the state budget (plus 20% interest and delay penalties), the criminal tax-evasion charges will be dropped.
It is unclear if these changes may occur. The Constitutional Court of Romania decided that they are unconstitutional and Parliament now has to modify them and restart the procedure.
On the verge of celebrating 30 years since the fall of communism, Romania is more than ever committed to Europeanism and to modernising its institutions and overall administrative procedures. The justice system is no exception, since it has become, especially in the last decade, a central focus of the entire society after the accelerated development of the fight against corruption and its influential outcomes, especially regarding the high-profile cases and criminal condemnations or acquittals, which have influenced to a great extent the political, social and economic progress of the country.
The main element which must be pointed out when it comes to the criminal justice system is that it appears to be undergoing a continuous process of change, especially since 2014, when Romania introduced a massive reform of the criminal law sector, through the introduction of new fundamental laws, of relevant European influence - the Criminal Code and the Criminal Procedure Code.
The Changes of the Criminal Codes and of the Criminal Legislation
These Codes should have ensured a more stable legal system, yet in practice it has been shown to be otherwise and an inconsistent legislator has made it so that the new Codes created significant professional problems for practitioners and courts alike.
Since the enforcement of the new Codes, the Constitutional Court has assumed a very active and intense role in verifying the constitutionality of many legal institutions that were thus created or modified. In addition to this, the High Court of Cassation and Justice issued numerous rulings (case-law or legally binding decisions) that had the purpose of unifying the practice and clarifying the divergences in interpretation, yet these created serious changes in the application of some legal institutions and generated a lack of predictability for the citizens.
In consideration of this conundrum, even though the legislation is relatively new and it was supposed to remain as immovable as possible, in the following years many proposals have been formulated for modifying it. In this context, in February 2017 the Romanian government tried again to modify both Codes, but alongside the necessary adjustments, they also tried to (partially) decriminalise some offences, amongst which was also the controversial abuse of office, the situation which led to the retraction of the infamous Government Emergency Ordinance No 13/2017, which was retracted after massive street protests were organised in the biggest cities.
In the ensuing period, more proposals of law were drafted but, to date, only the so-called Laws of Justice have been adopted (regulating the public Justice institutions - ie, courts of law, the Superior Council of Magistracy, etc); no significant amendments were made to the criminal Codes, as some of the proposals were not enacted by the President, while others were dismissed by the Constitutional Court as unconstitutional, both resulting in the recommencement of the legislative process.
Another point to be mentioned is the Anti-Money Laundering Law (former Law No 656/2002), which was significantly modified and became Law No 129/2019, also transposing the 4th Anti-Money Laundering Directive of the European Union. For the first time in Romania, legal entities have to file an official statement disclosing the real beneficiary of their activity. Moreover, the level of transparency of corporate ownership has been increased, as bearer shares have been prohibited (with a transition period of 18 months for the existent ones to be transformed into registered shares). However, by 10 January 2020, Romania has to transpose the 5th Anti-Money Laundering Directive, so further amendments are to be expected to this new law.
Another relevant change to be expected in the next period, currently under public debate (as part of the initial legislative process), is the Tax Evasion Law, No 241/2005. The project provides for reduced limits to the prison sentence applicable to tax evasion, as well as for reduced sentences in the case of full payment of prejudices (or even the application of a fine for paid prejudices under EUR50,000).
Although they are not a result of the law-making process but of the decisions of a more and more active Constitutional Court, it is also relevant to mention in this context the many decisions with a great impact on the judiciary system, such as the decision by which the procedure of assignment of judges in the Panel of 5 Judges of the High Court of Cassation and Justice (the highest criminal panel of judges in Romania) was declared unconstitutional. Due to this decision, many persons who were previously convicted by this panel criticised the decisions with extraordinary appeals, the execution of penalties being suspended during this time. This led to an extremely controversial move by the High Court of Cassation and Justice in the Elena Udrea case, when the judges decided to formulate an official questioning of the Court of Justice of the European Union in order to pronounce a Preliminary Decision by which to decide, among others, if the Constitutional Court should be able to decide upon the organisational norms of the High Court.
More recently, the regular panels of three judges within the High Court of Cassation and Justice (competent to judge as first court in high-level corruption cases) were criticised during the trial of Mr Liviu Dragnea as having been set up illegally(as the legal provisions stated that corruption crimes should be judged by specialised panels), which had been neglected or overlooked even at the level of the High Court. Again, the Constitutional Court was called upon to decide and it ruled in favour of the claim of unconstitutionality, considering the procedure of formation of these panels as unconstitutional. This decision had the power to cause a judicial earthquake in thousands of files judged by the High Court, which could have been revised as a result of having been ruled upon by illegally created courts; however, the Constitutional Court also ruled that this decision will be applicable only in ongoing or future cases, thus weathering the otherwise expected criminal procedures storm.
The Multiple Changes of Top-level Justice Decision-makers
Many key people in the Romanian Justice system, as well as many institutions, have been replaced or reshaped during this time, which has again resulted in a significant institutional instability, especially since 2020 will begin with all Prosecutors’ Office structures, as well as the Minister of Justice, under interim leadership.
After the resignation of the Minister of Justice Mr Florin Iordache, because of the street uprisings from 2017, the highly reputed professor of criminal law and former member of the Constitutional Court, Mr Tudorel Toader, was instated as Minister. However, because he continued the attempts to introduce criminal reform, compounded by general political and social criticism of the government, he resigned in April 2019 and was followed in the role by Mrs Ana Birchall, who was dismissed by the Prime Minister in August 2019 yet continued to hold office until late October 2019, when the government was in corpore discharged by Parliament as a result of an admission of a motion of no confidence.
In the meantime, the government tried to diminish the role of the President in the appointment procedure of the Chief Prosecutors of the National Anti-corruption Directorate and the Directorate for Investigating Organised Crime and Terrorism. Following the changes to the specific legislation, which transferred control of the proposals from the President to the Minister of Justice, the former Minister of Justice Tudorel Toader removed the controversial Chief Prosecutor of the National Anti-corruption Directorate, Mrs Laura Codruta Kovesi, from her position, performing a public indictment of her activity in which he accused her of political and judicial abuses, a dramatic increase in definitive acquittals and other dysfunctionalities of the Directorate, including illegal co-operation with the Romanian Intelligence Service and lack of co-operation with the Parliament in several official inquiries. Consequently, the Directorate is now lead by an interim chief prosecutor, Mr Calin Nistor.
Shortly after, the newly created Section for the Investigation of Crimes from the Justice System (previously under her direct supervision) took over all the criminal complaints formulated against Mrs Kovesi and brought official charges against her for crimes relating to the illegal performance of criminal investigations in files of the National Anti-corruption Directorate, including deciding the application of the restrictive measure of judicial control (revoked after a few days by the High Court).
Despite the multiple criminal investigations and even official charges brought against her at national level, Mrs Kovesi submitted her application to be named the first Chief Prosecutor of the European Public Prosecutor's Office. After very controversial political negotiations and procedures in the EU Parliament and the Council of the European Union, in which many Romanian MEPs opposed her, she was validated and appointed in this position in October 2019.
In parallel, the General Prosecutor of the Prosecutors’ Office with the High Court of Cassation and Justice, Mr Augustin Lazar, was receiving heavy criticism from the government, professional organisations of judges and representatives of the civil society for his illegal institutional co-operation with the Romanian Intelligence Service, as a result of which he decided to retire in late April 2019. One of his deputies, Mr Bogdan Licu, was designated as interim General Prosecutor.
The Directorate for Investigating Organised Crime and Terrorism was not side-stepped by the high-level changes, as in 2018 former Chief Prosecutor Daniel Horodniceanu lost the position in favour of Mr Oliver Felix Banila, a prosecutor whose appointment was disapproved of by many prosecutors due to his lack of experience. In October 2019, as a result of the criticism received in relation to the activity of the Directorate in certain publicly exposed cases regarding human trafficking, as well as the abrupt intervention of the President of Romania, he tendered his resignation from office, leading to another interim delegation of one of his deputies, Mrs Georgiana Hossu, again, a rather controversial figure.
In addition, the institutional politics also reached the Superior Council of Magistracy, which had serious organisational clashes on major issues, such as the appointment of Mrs Adina Florea as the new Chief Prosecutor of the newly formed Section for the Investigation of Crimes from the Justice System, a distinct structure of the Prosecutors’ Office with the High Court of Cassation and Justice created through the new Laws of Justice.
This Section itself is under intense scrutiny from both the judicial system and the public opinion, since its special competence (for the investigation of the crimes committed by prosecutors and/or judges, regardless of the nature of the committed crime or the location where it was committed) was fiercely argued within the public environment, dividing general opinion into either supporters or critics. Surprisingly, the most active critics were mostly prosecutors, who consider the Section to be a mechanism of pressure and control over them, especially because those prosecutors are confirmed by the Minister of Justice (even if validated by the Superior Council of Magistracy). On the other side, those in favour of the Section consider it to be a mandatory institution, which ensures that no prosecutor with a direct interest in the solution of a case (as from the National Anti-corruption Directorate, where it used to reside before being set up as an independent structure) can use its dissuasive power to influence magistrates (and especially judges) in their professional activity. The situation is far from being clarified, since the newly appointed political leadership of the government, as well as the President, have made it their goal to dissolve this Section.
Moreover, as a result of the ECHR Pilot-Judgment Procedure against Romania, from 25 April 2017, following the many convictions of the country for the violation of Article 3 from the Convention (related to detention conditions within the penitentiaries), Parliament adopted Law No 169/2017, by which it introduced a compensatory remedy (a reduction) of the executory prison sentences served in improper detention conditions, regardless of their type (violent or white-collar). This created a public reaction against the justice system, criticising the lack of any vision or plan for the re-education and re-integration of convicts in the Romanian prison system, a problem which has yet to be solved, since major reform is clearly needed, in order to re-centre the focus, especially when it comes to white-collar crimes, on the payment of the prejudice and the application of big fines, which would really discourage the perpetration of criminal actions.
Relevant Developments in the Courts of Law
This tumultuous and complex background of legislative and institutional changes in the criminal justice system created or amplified the context in which certain developments took place and influenced, one way or another, Romanian society itself, including relevant court cases with extremely significant political consequences.
The criminal conviction of a few high-profile public figures both shocked and pleased the public's opinion, depending on their political orientation. They are: Mrs Alina Bica, former Chief Prosecutor of the Directorate for Investigating Organised Crime and Terrorism, who was convicted to four years of imprisonment for the crime of aiding and abetting a perpetrator; the former mayor of Constanta, Mr Radu Mazare, who has several ongoing files and a definitive conviction for financial and corruption crimes of ten years of imprisonment; Mrs Elena Udrea, former Minister of Tourism, who was convicted to six years of imprisonment for receiving bribes and abuse of office. All three fled the country prior to the final decision and flew to exotic locations, where they believed that the extradition process would not be possible. Mr Radu Mazare went to Madagascar, while the two ladies tried to obtain political asylum in Costa Rica.
However, the most significant is surely the (second) conviction of Mr Liviu Dragnea, former President of the Chamber of Deputies and President of the Social-Democrat Party in Romania (the party which controlled the Parliament and appointed the government at that time), a power-player of the political life of Romania and also a very likely candidate for the November 2019 presidential elections. He was convicted to three years and six months of imprisonment for abuse of office, but the execution of the sentence could not be suspended due to his previous conviction for tampering with an election process, thus he was incarcerated and is now serving his sentence, which has led to significant shifts and rifts in the public and political environment.
In contrast with these convictions, the same period was characterised by many acquittal solutions in case files that were previously presented by the National Anti-corruption Directorate as being great victories when sent to court. Among them are the former Constitutional Court Judge, Mr Toni Grebla, accused of corruption; the former President of the Senate, Mr Calin Popescu Tariceanu, the ALDE party president, accused of false testimonies; the leader of the National Liberal Party, Mr Ludovic Orban, currently designated Prime Minister, accused of corruption; several High Court section presidents and judges, including the President of the High Court of Cassation and Justice since July 2019, Mrs Corina Corbu, accused of corruption crimes and delivering interested decisions in cases that were tried; the former Prime Minister and current Pro Romania president, Mr Victor Ponta, and the former Minister of Transport, Mr Dan Sova, who were cleared (although this is not final yet) of accusations of corruption in relation to consultancy contracts. Moreover, other high-level cases ended in definitive acquittals for some of the defendants, such as the illegal restitution of property case of (amongst others) the former Minister of Justice, Mr Tudor Chiuariu, with charges amounting to EUR330 million, or the case regarding the National Agency for the Restitution of Property, which comprised patrimonial prejudices evaluated by the accusation at EUR90 million, in which the former President of the National Agency for Integrity (member of the Board of NARP) was fully cleared.
A huge public scandal arose when numerous secret co-operation protocols concluded between the Romanian Intelligence Service and justice system main actors (the High Court of Cassation and Justice, the Prosecutors’ Office with the High Court, the National Anti-corruption Directorate, the Directorate for Investigating Organised Crime and Terrorism, the National Agency for Integrity, the Agency for Fiscal Administration and other central public institutions) were made public after being officially dismissed and denied by the relevant signatories for several months. The protocols stipulated, briefly, that officers from the Romanian Intelligence Service would help and co-ordinate directly the judges, the criminal investigation bodies or the other officials in their activity, even though the Romanian Criminal Procedure Code expressly denied these powers or competences. After the public scandal related to these protocols was submitted to its analysis, the Constitutional Court declared these protocols unconstitutional and therefore demands for annulling the illegal evidence thus obtained (or the trials themselves) began to be formulated in all case files in which it turned out that the Romanian Intelligence Service was involved in the criminal investigations (especially with wire-tappings or other secretive investigative procedures).
A historical file, the one regarding the violence performed against the people who protested in the streets against the political power in 1990, immediately after the Anti-communist Revolution, was finally sent to court by the prosecutors within the Prosecutors’ Office with the High Court of Cassation and Justice, having as defendants the former President, Mr Ion Iliescu, and the former Prime Minister, Mr Petre Roman, in addition to other State and Army high-level commanders. However, after a brief analysis of the evidence in the Preliminary Chamber Procedure, the High Court of Cassation and Justice decided that the Indictment Act and most of the criminal investigation acts were null due to procedural problems at the beginning of the investigation, more than ten years previously. Therefore, the case file was sent back to the Prosecutors’ Office and the criminal investigation must be resumed.
Another event that seriously shook public opinion and for the last months moved the focus from corruption crimes to more violent ones (such as human-trafficking and proxenetism networks) is the infamous case of the alleged killer, Mr Gheorghe Dinca, who is accused of raping and killing two girls in the Caracal region (very close to the US-controlled NATO Army Station from Deveselu). This case became famous as one of the victims, while she was kidnapped, managed to call the authorities on the emergency number 112, but the Romanian police force failed to find her in time.
Trends for the Future
The justice system is hence indirectly accused of allowing organised criminal groups to grow in power and operate safely on Romanian territory due to the almost exclusive focus on the activity of the National Anti-corruption Directorate on high-profile corruption crimes. These accusations, corroborated with the extremely controversial and publicly indicted departure of Laura Codruta Kovesi, are likely to incite a shift of focus, in the following period, from the corruption crimes to human trafficking and other violent crimes, as Romania appears to be a safe haven for perpetrators operating in this area or who recruit their human resources here.
However, it appears that the Romanian investigation bodies are intensively continuing the fight against tax evasion and money laundering resulting from economic crimes, hopefully in a more efficient matter, which includes a shift of focus to the payment of the prejudice rather than the imprisonment of the perpetrators.
Additionally, in general public opinion there is a strong belief that internationally owned private companies acting in Romania are overlooked by criminal investigation bodies or tax authorities, the reason for which belief is that the recent search warrants that were enforced at the Bucharest headquarters of a US-based IT services giant, along with the official accusation and preventive measures taken against its CEO (even if, ironically, a Romanian national), were seen as a step in the right direction. Also, other big international companies are currently under investigation for economic and other connected crimes, which might pose a serious issue to foreign investors should this approach become State policy.
What is to be further expected, other than the appointment of a new (short-term) government (until the next general elections, in the second part of 2020), including a Justice Minister, is the selection of roughly all general or chief prosecutors, along with many co-ordinators of local structures, which is viewed as an opportunity for a renewal of the leadership of the State investigative authorities, as well as for a completion of their personnel (still considered insufficient), in order to resume the fight against criminality of all natures (corruption, economic, organised, etc) which is seen as somewhat stagnant at present.
In parallel, the courts of law (from the bottom to, especially, the top) are expected to deliver solutions in many important or highly scrutinised criminal files. The current trend of acquittals may be maintained to a significant extent, especially in corruption cases which were investigated starting a few years ago, at a time when procedures counted for less than the need to display publicly convictions or files sent to court.
Lastly, but surely most influentially, the modifications to the Criminal and Criminal Procedure Codes will definitely bring a new set of changes to the specific system and environment, most likely solving some of the problems caused by the many inconsistencies in the current Codes but, as experience has shown over time, also raising new challenges for the professionals and for the people and companies requested to obey a law which is, in these times, rather difficult to follow because of its very significant and rapid changes.