Romania has ratified the Criminal Law Convention on Corruption, Strasbourg 1999 by Law 27/2002 and the Additional Protocol (ETS 191) was ratified in 2004. These treaties came into force in Romania on 1 November 2001 and 1 March 2005, respectively.
The main rules regulating corruption in our country are contained in the Penal Code (PC) in force as of 1 February 2004, as well as in Law 78/2000 on preventing, finding and punishing acts of corruption.
The provisions of the present PC criminalising bribery and influence peddling (Articles 289 to 291 of the PC) can be considered ”traditional crimes”, in the sense that they date back to the time when the communist regime did not distinguish between corruption in the public sector and that in the private sector; in fact, the range of bribery and influence peddling crimes is set forth in a PC chapter named ”Corruption Crimes and Crimes in Office”, which apply to all areas of activity.
Romanian criminal legislation does not provide for different classifications of criminal act dependent upon the degree of social menace or seriousness of that committed act. At the same time, a concise definition of crime is not to be found in the PC though one can be deduced from Article 15, which establishes the essential features of a crime, namely:
Where the analysis of a crime is concerned, it is necessary to distinguish between:
The PC provides for several means of committing a crime including attempted crimes, though these are only punishable when the law specifically provides so, as set out in the provisions of Article 33 para. 1 PC. As far as the penalty regime is concerned a lesser penalty is provided for attempted crimes; they are punishable with half the penalty provided by the law for the completed crime.
A final notable aspect of Romanian criminal law is the institution of discontinuance and of the prevention of the occurrence of criminal results. This provides that the law does not punish perpetrators who, before the crime is discovered, have ceased committing the relevant act or have notified the authorities about the committing thereof, so that consummation could be prevented, or the perpetrators themselves prevented the consummation of the act. However, if the acts committed up to the moment of the ceasing or preventing of the result represent another crime, the penalty for that crime will be applied.
Romanian legislation provides limitation periods for criminal liability differentiating, not by the type of crime, but by its gravity. These limitation periods are expressly established based on the special maximum penalty for the crime.
The limitation periods for criminal liability are regulated by Article 154 PC and are the following:
These terms start running from the date when the crime is committed with the particularity that, in the case of continuous crimes, the term runs as of the date of the ceasing of the action or inaction.
Romanian penal law sets forth the principle of territoriality, which means that penal law applies to crimes committed in the territory of Romania, but may also apply to crimes that are not committed in territory of the state if:
Romanian penal law also applies to crimes, other than the ones mentioned above, committed by a foreign citizen, or by a person without citizenship who is willingly in the territory of Romania, if the crime committed is one that the Romanian state has undertaken the obligation to suppress under an international treaty, regardless of whether this act is criminalised by the penal law of the state in whose territory the crime has been committed. This is the case even when extradition or surrender of the offender has been requested and the same has been denied.
Romanian legislation provides for the criminal liability of legal, as well as natural, persons with some exceptions; specifically states, public authorities and public institutions.
Based on Article 135 PC, a legal entity can be held criminally liable for crimes committed in the performance of its activities or in the interest or name of the legal entity.
The criminal liability of a legal entity does not exclude the criminal liability of a natural person who has contributed to the committing of a criminal act, there being a special provision in that respect in Article 135 para. 3 PC, without a legal preference as to the entailing of criminal liability.
Usually, the criminal liability of an individual within a legal entity refers to the leader of the entity, generally the statutory director. The relevant role in cases of criminal liability is the de facto, and not the de jure, director when the person in question does not act in both capacities.
The Romanian criminal code establishes the principle of personal criminal liability, based on which the person committing the crime is held liable. In the matter of the criminal liability of legal entities however, examination of the elements thereof reveals the fact that they should not be treated, from a legal point of view, identically to individuals, since the latter literally cease their existence by death, while merger, absorption or spin-off of represent other forms of existence for legal entities. Article 151 PC, ”effects of merger and spin-off”, provides for these situations. When a legal entity loses its legal personality by merger, absorption or spin-off after the committing of a criminal offence, the criminal liability shall be borne by the legal entity formed by merger, by the absorbing legal entity or, as the case may be, by the legal entities created by the spin-off or who have acquired fractions of the assets of the spun-off legal entity.
Under Romanian law, a criminal trial has two elements: one criminal, which consists in the entailing of criminal liability to the person committing a crime; and one civil, which is meant to repair the damage caused by the criminal offence.
From a procedural point of view, there are no special conditions to be met for compensation for the damage resulting from a white-collar crime. Article 20 of the Procedural Penal Code (PPC) compels the victim to constitute itself as a civil party in the criminal trial. In other words, an essential condition the victim must meet in order to obtain reparation for damages is to address the judicial authorities with a complaint specifying the amount of the claim, the grounds of the complaint and any evidence the victim wishes to use to prove its claims.
A request by a victim to constitute itself as a civil party is addressed to the judicial authority (the criminal pursuit authority or the court), which respectively investigates the crime or hears the case. This request occurs at the first hearing in the trial phase.
With regard to reparation for damage, when a request for constitution as civil party is submitted in the penal trial, the court hearing the criminal matter in question is bound to rule on both the criminal and civil elements of the trial, as per the provisions of Article 25 para. 1 PPC and Article 397 para. 1 PPC.
However, there are situations when the penal court will not rule on the civil aspect in view of awarding compensation, namely when the injured party was not constituted as a civil party in the penal trial or in situations expressly provided for in Article 25 para. 5 PPC, when the criminal court leaves the civil aspect unresolved. In both cases, jurisdiction belongs to a civil court which will be chosen based on the jurisdiction regulations expressly provided for by the Procedural Civil Code (“CC).
As far as the other offences that come within the scope of white-collar crimes are concerned, reparation of damage can represent a mitigating circumstance and can have, as its effect, a lower penalty.
Romania has made significant progress in the fight against corruption, the legal framework having been constantly improved since2002, when Law 27/2002, ratifying the Criminal Law Convention on Corruption, Strasbourg 1999 and the Additional Protocol (ETS 191), 2004 became effective.
At present corruption and corruption-related crimes are better regulated by the Penal Code effective as of 01 February 2014.
In the Romanian legal system the relevant authorities for the investigation and adjudication of white-collar crimes, known as the judicial authorities, are divided into two categories: criminal pursuit authorities and courts. In both cases there are departments, sections, services, offices and, as the case may be, panels of judges specialised in this type of crime.
As far as the activity of criminal pursuit is concerned, the prosecution bodies involved in the investigation of white-collar crimes may differ according to the type of crime committed. For instance, when dealing with corruption and crimes in office, the relevant prosecution body is usually the National Anticorruption Directorate (DNA) inside the General Prosecutor’s Office. When dealing with economic crimes, the competent prosecution body is usually the Prosecutor’s Office attached to the Tribunal, but can also be The Directorate for Investigation of Organised Crime and Terrorism, within the General Prosecutor's Office in cases where the file contains elements suggesting that a crime was committed by a criminal group.
The courts are composed of panels specialised in certain types of criminal offenses.
There are no special rules concerning the initiation of investigations into white-collar crimes, see 2.6 Prosecution below for information on the initiation of white-collar prosecutions.
The means to pursue or investigate a white-collar crime are the same as with other crimes., The following procedures are often employed: gathering data regarding the performance of financial transactions; domicile/headquarter raids; collection of evidence, objects and documents; and expert technical reports.
In Romanian criminal procedure, investigations and the production of evidence are carried out by criminal investigation bodies during the phase of criminal pursuit, and by courts during the trial phase. Criminal procedural law provides that the investigation body collects and uses evidence both in favour of and against the person suspected of committing the crime, without expressly stipulating cases where investigations can be made by parties.
However, any party to a criminal trial may produce evidence in their favour, this evidence is produced before the judicial body and may consist of documents, parties’ statements, witness testimony and expert reports. It should be noted that the latter may be of either a judicial nature – that is required by the judicial body ex officio or at parties’ request – or an extrajudicial nature, especially in the case of expert reports ordered and paid for by the interested party.
Cross-border co-operation in criminal matters takes place in several ways, the most important of these being the transfer of convicted persons, international legal assistance in criminal matters and extradition.
The following international agreements are applicable to the transfer of convicted persons:
Romania has also signed several bilateral treaties on the transfer of sentenced persons with Egypt, Moldova, Turkey and the Republic of Kazakhstan.
As regards international legal assistance in criminal matters, in terms of white-collar-crimes the following conventions ratified by Romania are of interest:
Regarding extradition, as a member of the European Union, Romania abides by Council Framework Decision 2002/584/JHA on the European arrest warrant and the surrender procedures between member states. Statements made by certain member states on the adoption of the Framework Decision, as well as the European Convention on Extradition, Paris 1957 and its Additional Protocols are also applicable to white-collar crime.
At the same time, Romania observes and applies the provisions of the United Nations Convention Against Corruption (UNCAC) and those of the United Nations Convention against Transnational Organized Crime (UNTOC).
Romania is part of several bilateral treaties, those regulating extradition and applicable to white-collar crime have been signed with Algeria, Australia, Brazil, Canada, China, North Korea, Cuba, Egypt, Morocco, Mongolia, New Zealand, Syria, The United States of America, Tunisia, Turkey and the Republic of Kazakhstan.
The institution of extradition is internally regulated by Article 19 of the Constitution of Romania, Article 14 PC and by Law 302/2004, as amended and completed by Law 236/2017
Persons situated in the territory of Romania who are prosecuted or arraigned for an alleged criminal offence, or wanted in order to serve a sentence or other criminal court decision in the requesting state, can be extradited from Romania to a foreign state, under the law, at the request of a foreign state.
However, Romanian legislation provides for certain situations when extradition is expressly denied:
The law also provides for certain cases when extradition may be denied:
The prosecution of white-collar crimes is commenced as a result of one of the means of notification of the investigation bodies provided by the Romanian law. Article 288 PC provides several listed below:
See the provisions of Article 478 PPC referred to in 2.8 Deferred Prosecution below. The agreement for the admission of guilt is the institution that comes the closest to a deferred prosecution in Romanian law. Still, in this case, the defendant will not be exonerated, but will receive a lesser punishment (reduced by one third).
As such, an institution that matches the exact provisions of DPA or NPA is not provided for by Romanian legislation
Romanian penal procedure presently provides two routes through which the activity within the penal process can be simplified and the defendant can benefit from a milder penalty regimen in these cases.
A first alternative is the simplified procedure provided by Article 375 PPC, which has the following particularities:
A second alternative is the special procedure for the agreement of the admission of guilt, regulated by Articles 478 et seq of the PPC, which bears the following features:
In Romanian legislation, the activity of legal entities is governed by Law 31/1990, which provides in Title VIII the misdemeanours and crimes that can be committed in connection with their activity.
Thus, as far as corporate white-collar crimes are concerned, they are provided in Articles 271 and 272 of Law 31/1990, namely:
Apart from the crimes mentioned above, fraud can also be committed in connection with corporate activity, there being no differences as to the meeting of the constitutive elements compared to other white-collar crimes. As such in order to prosecute the person who committed such an act, the constitutive elements must be met, namely, the objective aspect (the material element, the immediate consequence and the cause-effect relation) and the subjective aspect, which refers to the form of guilt in committing of the crime.
Bribery, influence peddling and related offences changed enormously once the new Penal Code came into force (February 2014), and, as such, they are presented in Title V, Chapter I, named “Corruption Crimes”, the lawmaker reserving Articles 289 – 294 PC for elaborating these crimes.
From the above-mentioned list one can surmise that the corrupt acts of foreign public officials are criminalised in Romania, but this incrimination is relatively recent, since it was not present in the old Penal code.
As far as the corrupt acts between private persons are concerned, these are not criminalised, unless they are related to public officials, in the sense that, although they do not have a capacity clearly established by a public statute, they perform activity of public interest.
Presently, the Romanian legal system includes active practices for fighting corrupt acts, the lawmaker emphasising these type of crimes since as early as 2000, when, Law 78/2000 on Prevention, Finding and Sanctioning Corruption Acts came into force.
Also, the lawmaker’s attention to corruption has increased by including some of the corruption crimes in the present Penal code, crimes previously contained by other acts
Banking in Romania is regulated by Emergency Ordinance 99/2006 on Credit Institutions and Capital Adequacy, a legal document that also regulates crimes committed in connection with the banking system.
In Romania, acts of tax fraud are criminalised by Law 241/2005 for Preventing and Fighting Corruption.
As in the case of any other crime, in order to prosecute a person who has committed such an act, all constitutive elements of a crime must be present.
Law 241/2005 provides in Chapter II several ways in which tax evasion crimes can be committed:
Crimes related to financial record keeping are included in the tax evasion crimes provided by Law 241/2005 and as regards the proving of these by the relevant authorities, one must prove the existence of the constitutive elements.
These crimes are provided by Law 241/2005 in the following articles:
In Romanian legislation, the protection, maintenance and stimulation of competition and of a normal competitive environment, in view of promoting consumers’ interests, is regulated by Competition Law 21/1996, this providing, in Chapter V, distinct penalties in accordance with the type of crime committed (crime or misdemeanour) and in accordance with each act.
The above-mentioned law provides one crime and numerous misdemeanours.
As far as the crime is concerned, it is incriminated in Article 65 of Law 21/1996: the act of any person holding the position of director, legal representative or who performs (in any other way) management duties in a company, to conceive, or to organise, with intent, one of the practices of arrangements between companies, decisions of shareholders of companies and concerted practices, which have as object or result in hindrance, restriction or distortion of competition in the Romanian market or on a part thereof.
The sanction regime for this crime consists of imprisonment of six months to five years, or a criminal fine and the complementary penalty or restraining of some rights.
As far as the misdemeanours are concerned, they are extremely numerous, these being provided starting with Article 53 of Law 21/1996, and being grouped as follows:
The penalty applicable to misdemeanours in Law 21/1996 is a fine and this can be applied in two ways: it can be established between a special minimum and a special maximum (eg, from RON10,000 – 20,000 or from RON20,000 –50,000) or it can be established by applying a percentage of the turnover of the offender (for instance from 0.5% to 10%, or, as the case may be, from 0.1 to 1%) depending on the committed act.
The Romanian Penal Code does not contain a separate section for crimes committed mainly against consumers, but there are crimes whose passive subjects can be consumers:
Besides the aforementioned crimes, it should be noted that Romanian legislation regarding consumers’ rights is quite ample, consisting mainly of the following legal documents: Ordinance 21/1992, Law 193/2000, Law 363/2007, Emergency Ordinance 50/2010 and Ordinance 52/2016, but these do not regulate crimes, but only misdemeanours.
Presently, in Romania, the phenomenon of cybercrime is mainly present in the following fields:
Presently, cybercrimes are regulated by the Penal Code, since Law 161/2003 was partially abrogated, now providing only misdemeanours regarding cyber activity.
The main crimes regarding computer systems are:
It should be noted that the attempt to commit any of these crimes is also illegal.
Romanian customs procedure is regulated by the Customs Code, in force as of 2006, which contains crimes relating to the customs regime, these being provided by Articles 270 to 273:
It should be noted that the following are also assimilated to contraband: collection, possession, production, takeover, deposit, delivery and sale of goods or assets that must be placed under customs regime, knowing they come from contraband or are meant for committing contraband, the punishment system being the same, namely two to seven years and restriction of some rights.
Also of note are:
Concealment is treated, in Romanian law, largely in terms of money laundering and is covered by the provisions of Article 49 para. 1, letter b) of Law 129/2019 on Preventing and Fighting Money Laundering and Financing Terrorism where it is defined as concealment or dissimulation of the true nature, origin, placement, disposition, circulation or ownership of goods, or rights over goods, where it is known that those goods originated from a crime.
First, from the definition of this crime, one can notice that it implies that another main crime has been previously committed (predicate), wherefrom the goods subject to money laundering originate. Without this “assumed situation” existing, the crime committed in concealment cannot be conceived, since it would lack its material object, and namely the goods.
Second, just like in the case of any other crime, in order to prosecute a person who committed such an act, all the constitutive elements of a crime must be present, both the objective aspect (material element, the immediate consequence and the cause-effect relation) and the subjective aspect, which refers to the form of guilt in committing the crime (intention, negligence or exceeded intent).
The applicable penalty is imprisonment of three to ten years.
The Romanian legal system provides that a crime may have several participants, in different capacities: author, co-author, instigator and accomplice, out of which two are of interest for our analysis.
When several persons together and directly commit a crime, they are co-authors.
When the activity of one of the participants consists in assisting another person who directly commits the crime, said participant will be an accomplice.
The penalty regime is the same for all participants when they all commit the act with the same form of guilt, the penalty provided by the law for the author.
In Romanian legislation, Law 129/2019 sets out the national framework for preventing and fighting against money laundering and financing terrorism, after Law 656/2002 was abrogated.
The following are considered money laundering crimes:
All of the above are punished with imprisonment from three to ten years.
Each of the methods described above requires the existence of a main crime, from which the goods that are the object of the money laundering originate, this condition being of the essence for the crime of money laundering. Also, in order to prosecute a person who committed such an act, all constitutive elements of a crime must be present.
For the purposes of preventing money laundering, Law 129/2019 established persons and named reporting entities, which have the obligation to report to the National Office for Prevention and Control of Money Laundering, which is the authority charged with co-ordinating the evaluation of money laundering risks in specific cases, particularly where:
The relevant authorities to investigate money laundering crimes are judicial bodies (prosecution bodies and courts), the investigation procedure being mostly the one provided by the Penal Procedural Code, the only particularity being that, in these cases, the precautionary measures are mandatory.
In Romania, the practice of white-collar criminal law has grown consistently in the last few years, against the background of increasingly intense activity on the part of the Romanian authorities, especially of the National Agency for Fiscal Administration, which has been generating a significant (and increasing) number of criminal files.
Presently there is a clear tendency for an increasing number of internal investigations to be carried out by parent-companies at their subsidiaries in Romania, which is an encouraging sign, since it proves that, for companies, zero tolerance of criminal policy represents a priority.
This being the case, most companies, in order to defend themselves, have developed policies of internal compliance in relation to all the crimes falling within the white-collar scope, continuously carrying out internal investigations, which require complex legal involvement consisting of:
Romanian legislation provides for no exceptions regarding the meeting of the constituent elements of a crime or the procedure for the investigation and trial of white-collar crimes, with no domains or sectors of activity excepted.
The risks to a company usually appear in relation to the actions of their own representatives or employees, as Romanian legislation provide for the criminal liability of companies for the actions of its representatives or employees, which is why it is essential to firmly dissociate the company from any potential fraudulent acts committed by such persons.
In this regard, in order to avoid the connection between the actions of the company and those of the persons mentioned, the attention of the company should be focused on a few essential priority measures and, should a representative or employee who is guilty of committing a white-collar crime be identified, the immediate notification of the competent judicial bodies is recommended and this may even lead to an exoneration or at least a mitigation of the criminal liability of the company, this conduct being possibly considered as a mitigating circumstance regarding the committed act.
More specifically, the Penal Code provides in Article 75 circumstances that can alleviate criminal liability in the sense of reducing the special limits of the applicable penalty by one third.
An internal policy of the company according to which there is no tolerance towards any criminal acts necessarily implies the implementation of notification channels dedicated to whistle-blowers, as well as the frequent organisation of training programs for awareness of the relevant internal policy within the company.
It is important to mention that such measures do not necessarily guarantee that the company is exonerated from criminal liability, but significantly minimises them.
As for the whistle-blowers, there are no specially regulated procedures for protecting them in Romanian law, though there may be protection measures established by internal rules and policies by companies.
Witnesses within the meaning of the Criminal Procedure Code can benefit from measures ordered by the judicial bodies in order to protect them, measures provided by Articles 126 and 127 CPP, of which we can mention:
In procedures involving white-collar crimes, in the criminal trial, the burden of proof is borne mainly by the prosecutor, and in the civil action, the burden of proof is borne by the civil party bringing a claim, or, as the case may be, by the prosecutor who carries out the civil action in which the victim is without civil capacity or has a restrained civil capacity.
Thus, just like in other legal systems, the suspect or the accused benefit from the presumption of innocence and are not forced to prove their innocence and have the right not to contribute to their own accusation.
As far as the standard each piece of evidence must meet, the penal procedural law establishes the principle of loyalty of the evidence, based on which it is forbidden to use violence, threats or other means of constraint, also establishing that the evidence does not have a pre-set value by the law, as this can be freely considered by the judicial body.
A defendant deemed guilty of a crime, be it a white-collar crime or any other, will face a penalty assessed by the court within the special limits set forth by the law (between the minimum and the maximum). The court will drive the penalty towards the minimum or the maximum based on the particular circumstances surrounding the crime (such as the amount of damage caused or whether there were mitigating or aggravating circumstances) and the personal circumstances of the defendant (such as prior criminal activity, their behaviour after the committing of the crime, during the investigations or their social environment ).
Observations made hereinabove concerning the situation of a defendant in the event of a deferred prosecution agreement, non-prosecution agreement or plea agreement shall apply in the sentencing process accordingly.