Cum a mancat rahat ministrul Justitiei in fata Comisiei Europene cerand schimbari in raportul privind Romania

A. CRUCIAL CHANGES

p. 14, para 1, 3rd bullet

“More problematic may be the fact that the NIA would not meet the independence criteria requested. In particular, incompatibility between the quality of parliamentarian and that of lawyer was not reintroduced in the project, as it was in the initial project. Moreover, appointments and possible revocations of the NIA’s President and Vice Presidents depend on the Senate, albeit on proposal of the National Integrity Council.”

WE PROPOSE TO DELETE THIS TEXT.

ARGUMENTS:

The author confuses the regime of incompatibilities and the institutional provisions regarding NIA. There is no logical or legal connection between the compatibility of parliamentarian and lawyer and NIA independence criteria, these are two separate legal issues, one substantive and one institutional, mixing them together is utterly incorrect.

Background information:

ü The initial draft law of 2006 had a section aiming to modify the legal regime of incompatibilities, introducing the incompatibility between the position of MP and the profession of lawyer. This section has been dropped, as being harshly criticized by civil society as unclear and against ECHR jurisprudence. Thus, Law 144/2007 has not modified the regime in force, as provided by Law 161/2003, which is fully consistent with European standards. The Romanian system is similar to the French one: the two positions are compatible, but legal practice is permitted only subject to strict limitations.

ü In accordance with art. 82^1of Law 161/2003, lawyers holding the position of MP are not allowed to represent or provide assistance in criminal cases on corruption, drug traffic, traffic of persons, money laundering, crimes against state security, crimes against justice, crimes against peace and humanity. They are not allowed to represent or assist in civil or commercial litigations against the state, any public authority or institution or company with public participation. They are not allowed to plead before international courts in cases involving Romania (Law 161/2003 as subsequently amended, Book I, Title IV, Chapter 3, Section 2, art. 82^1).

The interpretation that the nomination and revocation of NIA’s president and vice-president depend on the Senate and are problematic with respect to NIA’s independence is not in conformity with the legal provisions.

ü As pointed out on 23 May to the Commission in the comments of the Romanian authorities to BM 2 and in the subsequent progress reports sent to the Commission’s Representation in Bucharest on 11 June and 20 June as well as on the occasion of bilateral meetings[1], the Senate has little room both in the appointment and the revocation procedure and plays a formal role.

ü To better illustrate this system, we make a parallel with the appointment in office of judges. The fact that, under art. 125 of the Romanian constitution, the President of the republic appoints in office the judges selected and proposed for appointment by the Superior Council of the Magistracy does not mean that the judges are subordinated to the president or that he/she has any margin of appreciation in their appointment. His/her role is formal.

ü The same principle applies in the case of NIA, where the candidates are selected following an open competition and proposed for appointment by the National Integrity Council. Revocation grounds are narrowly limited and are based either on violation of the law or an external independent audit. The Senate does not have any discretionary powers in this regard.

· P. 15 para 1

In addition, a series of recent events could have negative impacts on the fight against corruption. These include the decriminalization of bank fraud, of bank fraud, the intention of parliament to shorten the maximum duration for penal investigations and the request for dismissal of a senior member of DNA.

WE PROPOSE TO DELETE “the request for dismissal of a senior member of DNA”.

ARGUMENTS: The Commission’s position falls outside the scope of this benchmark. The Commission’s position suggests that whatever the circumstances and the behavior, prosecutors cannot be revoked.

ü The Romanian authorities do not understand the position taken by the Commission. The BM requires that the current procedures for the nomination/revocation of top prosecutors be maintained in force, not that these procedures cannot be used.

· p. 15 para 5

The timeframes in which DNA conducts and concludes its investigations continues to illustrate a high level of professionalism in the Department’s multi disciplinary investigating teams.

WE PROPOSE TO DELETE THIS TEXT.

ARGUMENTS:

The sentence is redundant, it repeats the idea presented in the previous paragraph

Furthermore:

ü The Romanian authorities have concerns over the qualification as highly professional of the timeframe of DNA investigations. Referring to the information provided by the Romanian officials[2] in connection with the request of revocation of the chief of the NAD 2nd section we reiterate the fact that, from the 428 cases registered in Section 2 of NAD during the last year, only 99 were solved. Among these, only 18 were sent to trial, and the rest of them did not receive criminal pursuit solutions.

ü The Romanian authorities would like to draw the attention that, while welcoming the swift resolution of criminal investigations, the time frame alone is not an indicator of high level of professionalism. How does the Commission know that all DNA investigations have been conducted in a correct and professional manner, providing strong evidence before the courts?

· p. 15. para 6

However, the efforts and results of the DNA in the prosecution of high level corruption are not upheld by a similar output of the court system. There are several elements in the practice of the courts that indicate either insufficient awareness of the corruption phenomenon or lack of training/knowledge.

WE PROPOSE TO DELETE “There are several elements in the practice of the courts that indicate either insufficient awareness of the corruption phenomenon or lack of training/knowledge”.

ARGUMENTS:

The sentence is redundant, it repeats the idea presented in the following paragraph.

Furthermore: The Romanian authorities consider this argument which evades the question of the quality of the evidence provided by the prosecutors. The Commission should also take into consideration the point of view of the judges.

p. 16, para 3

“With regards to the nomination and revocation procedures, the early departure or replacement of officials holding key positions to the reform process can be damaging to the continuity of the reform process. As to the nomination and revocation procedure of the General Prosecutor and the Chief Prosecutor of the DNA, the decision of the Senate’s Legal Committee to activate and older proposal pending in the Senate since 2006 was reversed by the Plenum in late March 2007. It remains to be seen whether the intent to modify the nomination procedure is abandoned irreversibly. The number of personnel changes in the past months is not reassuring in that respect. Examples are the departures of the figures of the GAD and the nomination for dismissal of leaders of DNA and NIM. In addition, several high officials of the Ministry of Justice have resigned.”

WE PROPOSE TO DELETE “The number of personnel changes in the past months is not reassuring in that respect. Examples are the departures of the figures of the GAD and the nomination for dismissal of leaders of DNA and NIM. In addition, several high officials of the Ministry of Justice have resigned.”

ARGUMENTS: the number and type of personnel changes refers to 3 persons, which does not justify such a statement, as the persons referred to are not part of the judiciary and their activity has nothing to do with criminal investigations.

ü The fact that 2 personal advisors of the former Justice Minister and 1 State Secretary have resigned is irrelevant for the purpose of the present benchmark. The activity of personal advisors has nothing to do with the conduct of criminal investigations.
ü Equally irrelevant is the comment on the request for dismissal of the head of the National Institute of Magistrates. The activity of NIM has nothing to do with the conduct of criminal investigations.

The considerations put forward by the Commission fall outside the scope of BM3. In accordance with the Commission’s explanatory notes, this BM refers to the nomination and revocation procedure of top prosecutor positions: „maintaining the current nomination and revocation procedure for the General Prosecutor of Romania, the Chief Prosecutor of the National Anti-Corruption Directorate and other leading positions in the general prosecutor’s office”.

With respect to the circumstances justifying the request of revocation of the head of the 2nd section of NAD we refer to the information provided by the Romanian officials[3] in this respect:

The proposal was based on the analysis of the statistical data of this Section. They showed unsatisfactory results in the fight against corruption. The proposal envisaged neither the person of the chief prosecutor, nor the investigations he was conducting, but the way he managed the activity of the section. The proposal reflects the intention of the minister of making the structure more efficient. The mismanagement consisted upon the lack of transparent criteria in selecting the investigated cases, as there were a lot of opened, old cases, and abandoned. Thus, from the 428 cases registered in Section 2 during the last year, only 99 were solved. Among these, only 18 were sent to trial, and the rest of them did not receive criminal pursuit solutions. Compared to similar data in the judicial system, there is a clear mismanagement problem.

B. OTHER CHANGES

p. 7, footnote 6, para 2

For its part, the General Prosecutor’s Office attached to the HCCJ concluded a restructuring strategy, endorsed by the SCM and adopted by the Ministry of Justice in February 2007.

PROPOSAL: THE ROMANIAN AUTHORITIS SUGGEST CORRECTION OF THE DATE.

ARGUMENT: The Srategy was approved by the Ministry in April 2007.

p. 10 , para 4

“The situation is very different for the two new procedure codes. The process is under way and well advanced for the Civil Procedure Code but only starting for the other one, where the composition of the Commission itself is still not finalized”.

WE PROPOSE THE FOLLOWING TEXT: “The situation is very different for the two new procedure codes. The process is under way and well advanced for the Civil Procedure Code but only starting for the other one although progress has been made. The composition of the commission for drafting the new Criminal Procedure Code was finalised and approved by Order of the Minister of Justice no. 1251/C of May 17th, 2007”.

ARGUMENT: As Romania has informed the European Commission on 23 May in the comments it submitted in relation to the peer-review report on BM1 drafted by expert Maurizio Salustro, the composition of the commission for drafting the new Criminal Procedure Code was finalised and approved by Order of the Minister of Justice no. 1251/C of May 17th, 2007.

p. 13, para 7

”The integrity inspector shall notify the court if, on the available evidence, there is a notable difference between the possessed wealth and the declared one, which cannot be reasonably justified.”

WE PROPOSE THE FOLLOWING TEXT: ”The integrity inspector shall notify the court if, on the available evidence, there is an obvious difference between the acquired wealth and the revenues gained, which cannot be reasonably justified.”

ARGUMENT: The obvious difference is between the assets acquired and the revenues gained, not between the assets declared and those possessed.

p. 16, para 5

“Moreover, another concern relating to the fight against corruption is the potential amendments of the Procedural Code, currently being discussed within the Parliament. This might have a substantial negative impact on the fight against corruption, particularly with reference to the following three issues: (1) Not withstanding concerns expressed, the abolition of the possibility for the Public Prosecutor to authorize suitably motivated provisional interception for urgent cases even though authorization of the judge is required – in any case – within the next 48 hours (2) the limitation of the investigation to a maximum period of six months (3) the limitation of running wire tapping to a maximum of 120 days. These amendments would seriously limit the potential of the investigators in collecting evidence, particularly when tackling well established criminal groups or powerful governmental representatives deeply involved with corruption”.

WE PROPOSE THE REVIEW OF THIS PARAGRAPH TAKING INTO ACCOUNT THE ARGUMENTS BELOW.

ARGUMENT: as officially communicated to the Commission on 23 May in the comments made to the report on BM4 drafted by expert Maurizio Varanese, any parliamentary discussion over amendments to the Criminal Procedure Code is frozen. We refer to the information already communicated:

Following a request of the Minister of Justice, the Legal Commission within the Chamber of Deputies suspended the debates on possible amendments to the Criminal Procedure Code (discussions on the approval of Emergency Government Ordinance no. 60/2006). Any discussion is stopped until a new Code of Criminal Procedure is presented.. The request was submitted within the context of the work on a new Code, which shall be submitted to public debate by the Ministry of Justice in the course of the adoption procedure.

p. 16, para 6

Finally, a new law was passed in late March 2007, decriminalizing certain aspects of bank fraud previously under the jurisdiction of the DNA challenges the legal stability of the anti-corruption framework. If the law is being applied retroactively, which appears to be the case, decriminalization would apply to bank officers that received kick-backs for granting questionable and illegitimate loans. This would have the result the dismissal of numerous pending cases by the DNA (text of footnote no 23: currently 52 cases are potentially concerned, involving hundreds of persons that would be going acquitted, and around an equal number of cases in the DNA that will be taken off criminal investigations).

WE PROPOSE THE REVIEW OF THIS PARAGRAPH TAKING INTO ACCOUNT THE ARGUMENTS BELOW.

ARGUMENTS:

ü As already pointed out by the Ministry in the progress report forwarded to the Commission representation in Bucharest on 20 June and on 8 June in bilateral meetings[4], by Transparency International and by the Romanian Bank Association, it was a case of excessive regulation.

ü There is no legal foundation for concluding that this decriminalization means the acquittal of hundreds of persons.

Explanatory note: Under the Romanian Criminal Procedure Code the judge is obliged to change the legal qualification of a crime, if a decriminalisation occurs during the trial, but the initial act has the elements of an offence which is still incriminated (334 Penal Procedure Code – PPC).

The judge has to submit the change of the legal qualification to the debate of the parties involved and to give the defendant the possibility of preparing his defence. It is also the prosecutor’s obligation to ask the judge to proceed as described above.

Breach of this obligation is ground for appeal (art 379 and 385 PPC). It is the prosecutor’s duty to file the appeal in such situations. In appeal the initial decision is annulled and the trial is resumed from the very beginning.

In the case of art 10 let b and c, the judge can re-qualify the crime into abuse of power, trading in influence or taking a bribe. There is no possibility a defendant charged on art 10 let b and c gets acquitted, unless the corruption charges prove to be unfounded. In relation to the NAD acquittals on art 10 let b and c, the Romanian authorities think that there must have been a problem with the evidence supporting the corruption charges.

For a more detailed account of the arguments presented above, we refer to the relevant section of the Transparency International National Corruption Report 2007[5].

p. 18, para 4

As far as the fraud of EU funds is concerned, the Department for Fight Against Fraud (DLAF) reported 13 new cases begun in January 2007, raising the total number of cases currently under investigation by DLAF to 41. Seven of them were completed by the end of January, three of them being referred to DNA for formal criminal investigations on corruption charges.

IN VIEW OF ACCURACY THE ROMANIAN AUTHORITIES SUGGEST THE FOLLOWING TEXT:

„As far as the fraud of EU funds is concerned, the Department for Fight Against Fraud (DLAF) reported 13 new cases begun in January 2007. The total number of cases under investigation by DLAF between 1 September 2006 and 15 March 2007 is 84, 63 cases being opened in the reference period. 22 files were forwarded to NAD on the basis of the cooperation agreement between the two institutions, and 17 were forwarded to the regular Prosecutor’s Offices.”

ARGUMENTS:

ü The Romanian authorities do not understand the source of the information on the figures and can confirm only the fact that 13 cases have been opened in January 2007.

ü The rest of the information cannot be confirmed by the Romanian authorities, which refer to the figures communicated on the 31 March progress report: “Between September 1st, 2006 and March 15th, 2007, the Fight against Fraud Department (FFD) had under investigation 84 cases[6] regarding the obtainment, handling or use of funds from European Union assistance programmes, 63 cases being opened in the reference period. Out of these, 52 cases were finalized and 32 cases are in progress.”

ü Furthermore, the time span is not clear: “the total number of cases currently under investigation by DLAF is 41”. Currently means September 2006 – June 2007?

We emphasize that in the last progress report submitted to the Commission representation on 20 June for the period 16 May – 15 June DLAF had under investigation 51 cases1 regarding the obtainment, handling or use of funds from European Union assistance programmes, 13 cases being opened in the reference period.

ü The reference to referring cases to DNA for criminal investigation on corruption charges is mistaken. It is for charges of committing offences against EU’s financial interests.

[1] 8 June 2007 meeting between Romanian officials with representatives of JLS, Commission Secretariat as well as responsible persons from the Cabinet of Vice-President Frattini
[2] Idem 1
[3] 8 June2007 meeting between Romanian officials with representatives of JLS, Commission Secretariat as well as responsible persons from the Cabinet of Vice-President Frattini
[4] 8 June2007 meeting between Romanian officials with representatives of JLS, Commission Secretariat as well as responsible persons from the Cabinet of Vice-President Frattini

[5] Section 1.3. The modification of Law no. 78/2000, through the decriminalization of illegally according credit as an act of corruption
At the beginning of April 2007, Law no. 69/2007 entered force, which modifies Law no. 78/2000 concerning the combating of corruption and infractions assimilated or in connection to corruption. Through the new regulation, according illegal credit is decriminalized as a corruption offence, while the modified text keeps, however, according illegal subsidies, misdirecting subsidies and using subsidies in another scope besides that for which they were accorded. All those remain criminal corruption offences.
From a technical, legislative perspective, criminalizing the obtaining of non-performing credit was impertinent. This effectively transformed commercial banking risk into a penal risk, which constituted an overregulation in the name of fighting corruption. The rationale of this modification resided in the fact that granting credit is done on the basis of a civil or commercial contract between the bank and the client, but violating this must not be considered an act of corruption. Criminally punishing acts connected to non-performing or fraudulent credit is possible in so far as an infraction in service can be constituted on the part of the employee or a manager at the bank. In this context, the beneficiary of the credit may be pursed on penal grounds as accessories to the infraction, applying the provisions on the plurality of perpetrators.
The hypothesis that the scope of this modification was to eliminate criminal liability for certain important persons, by decriminalizing the offences with which they have been charged by anticorruption prosecutors, lacks a legal foundation. In those particular situations in which the decriminalization profits the accused, but the social danger presented by the acts committed is incontestable, then the penal legal technique will be to reform and re-qualify these offences in so far as they form the constitutive elements of other infractions.
Where there are acts of corruption, but the relationship with the active agent (the corruptor) can no longer established, then criminal charges can be pursued according to the acts foreseen by article 132 of Law no. 521/2004. This states that the infractions of “abuse in service against public interest,” “abuse in service against the interest of other persons” and “abuse in service through limiting rights” are corruption offences if the civil servant obtained an advantage for themselves or another person through the respective action. The regulations mentioned must be interpreted and applied in light of article 147 of the Penal Code in force, which establishes the understanding and extent of the term of functionary as being any person who permanently or temporary exercises, with any title, indifferent as to how this was invested, a duty of any nature, remunerated or not, in the service of a unit which concerns public authority, public institutions, institutions or other legal persons of public interest, administration, use or exploitation of public goods or property, services of public interest, as well as goods of any kind which are of public interest, as well as any employee which exercises a duty in the service of any other legal person besides those foreseen above.
Therefore, a legislative act should not be repudiated because of particular and isolated effects which it may produce for certain persons, but should be understood through the prism of current social rationales in a functional market economy, of which Romania was certified as fulfilling the qualifications in 2004.
[6] PHARE – 49 cases; ISPA – 4 cases; SAPARD – 18 cases; Leonardo da Vinci – 12 cases, Youth – 1 case.
1 PHARE – 27 cases; ISPA – 2 cases; SAPARD – 14 cases; Leonardo da Vinci – 8 cases.

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