General Outlook

The 2023 fight against corruption looks set to continue under the same auspices as per 2022, with justice reforms remaining a priority on the political agenda throughout the past year. Many EU member states have initiated important reforms in order to strengthen the independence of the judiciary, including reforms that affect the composition and attributes of judicial councils, improve appointment procedures or reinforce the autonomy of criminal prosecution bodies.

EU member states have also introduced measures to enhance efficiency and quality through further digitisation of their justice systems and thereby facilitate access to justice in light of the COVID-19 pandemic. In this respect, the Romanian government has published several draft laws concerning the status of magistrates, judicial organisation and the draft law on the Superior Council of the Magistracy.

In line with other member states, Romania has adopted the Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law (commonly known as the “EU Whistleblowing Directive”) into national law, although this has yet to enter into force. On 29 June 2022, the EU Whistleblowing Directive was transposed into national law and the Law on the Protection of Whistleblowers in the Public Interest (“Whistleblower Protection Law”) was adopted by Parliament.

As such, within 60 days of the Whistleblower Protection Law entering into force, all public and private companies located in Romania with more than 249 employees must design internal reporting methods and channels. This obligation is also applicable to companies with 50—249 employees, but these companies have between one and two years to submit to the reporting obligation instead.

Laura Codruta Kovesi (in her capacity as Chief Prosecutor of the European Public Prosecutor’s Office) had a slightly negative reaction to this legislative process as a result. Kovesi stated that “the provision could have a demobilising effect, discouraging potential whistle-blowers in Romania and negatively affecting the level of fraud detection in EU”.

Unlike previous years, in which the trend was mainly for fighting organised and violent criminality, 2022 saw the focus of the judiciary environment in Romania shift to the discovery, prevention and fight against corporate crimes following the adoption of the EU Whistleblowing Directive.

However, also in 2022, a former Member of Parliament (MP) was finally indicted for trading in influence and forgery of private documents more than five years after criminal proceedings began. Specifically, the former MP allegedly demanded and received various sums of money between 2010 and 2014 from representatives of an IT company in order to induce the decision-makers and public officials he claimed or implied he could influence to:

• award public procurement contracts to that company; or
• allow previously signed contracts to be carried out in good conditions.

Another criminal case with political implications is the “Colectiv Club” case, in which Cristian Popescu Piedone (the mayor of the Fifth District of Bucharest) was finally sentenced to four years in prison almost seven years after the tragedy in which 65 people lost their lives. Judges at the Bucharest Court of Appeal also sentenced the Colectiv Club’s three owners to six, eight and 11 years in prison respectively.

Furthermore, after more than six years of trials, a case brought by the National Anti-corruption Directorate (Direcția Națională Anticorupție, or DNA) in November 2015 was finally resolved when the Bucharest Court of Appeal convicted Sorin Oprescu in 2022. The court sentenced the former mayor of Bucharest to:

• six-and-a-half years in prison for the aggravated version of the offence of setting up an organised criminal group;
• six years in prison for taking bribe;
• three years in prison for abuse of office; and
• three-and-a-half years in prison for money laundering.

After combining the sentences into one concurrent sentence of six-and-a-half years, the court added the mandatory additional four years and two months ‒ thus resulting in a prison sentence of ten years and eight months.

Another famous criminal case brought to the attention of the public in 2022 is that of the Minister of Tourism, Elena Udrea, whose appeal against a 2018 conviction for corruption offences was rejected by the High Court. Other investigations against her are also ongoing.

Controversies Surrounding the Statute of Limitations

This topic of limitation periods for criminal liability has undoubtedly aroused particular interest across the Romanian legal landscape in recent years. The Constitutional Court ruled in Decision No 358/2022 that Article 155 para 1 of the Romanian Criminal Code does not comply with constitutional law, thus giving rise to heated debates in the legal field and also to different interpretations by the courts.

In essence, Article 155 para 1 of the Criminal Code stated that the limitation period for criminal liability could be interrupted by “any procedural act in the case”. These regulations were not considered predictable by the Constitutional Court. They were also deemed contrary to the criminal procedure’s principle of legality on the grounds that the phrase “any procedural act” also refers to acts that were not communicated to the suspect or defendant – thereby making them unaware of the interruption of the limitation period and the start of a new limitation period for their criminal liability.

Ultimately, the direct application of this decision will trigger the closing of a number of criminal cases currently being prosecuted and lead to the acquittal of number of defendants already on trial. Therefore, by applying the principle of mitior lex, individuals may refer the court to Decision No 358/2022 and ask the court to apply the general limitation period if the offence was committed before 30 May 2022.

Although Constitutional Court decisions are binding and immediately applicable, the Bucharest Court of Appeal decided to initiate a request to the High Court to resolve certain questions of law related to the applicability of this decision. On 25 October 2022, the High Court transposed this debate and ruled in Decision No 66/2022 that the legislation in force between 9 August 2018 and 30 May 2022, which did not provide for any cases of interruption of the statute of limitations, constitutes a more favourable law as per the mitior lex principle. Numerous criminal cases have been closed, either during the prosecution or trial stage, as a result of this decision. Many will follow suit in the next several months, depending on the status of their procedures.

The representatives of the General Prosecutor’s Office argue that they do not agree with the applicability of Decision No 66/2022, as there is – among other things – the possibility of a “disguised amnesty”.

The DNA stated that the direct application of the decisions will have consequences for 557 cases, either under criminal prosecution or at trial stage, in which the total estimated damage amounts to EUR1.2 billion.

The DNA also announced that they will submit the matter to the ECJ in order to assess whether these decisions are consistent with the rules and the jurisprudence of the ECJ, which obligate the Romanian State to investigate and sanction acts of corruption and fraud of EU funds effectively.

The Directorate for Investigating Organised Crime and Terrorism (Direcția de Investigare a Infracțiunilor de Criminalitate Organizată și Terorism, or DIICOT) also stated that they identified a total of 605 criminal cases that could be closed as a result of these decisions.

Although there are still debates concerning their desirability, the authors believe that these decisions were also intended to sanction the prosecution bodies that allowed a multitude of criminal files to remain unresolved for more than a decade.

For the time being, the special statute of limitations is regulated by government emergency ordinance (GEO) No 71/2022, according to which “the course of the limitation period for criminal liability shall be interrupted by the performance of any procedural act in the file that, according to the law, must be communicated to the suspect or defendant”. GEO No 71/2022 was adopted in the context of Decision No 358/2022 of the Constitutional Court, which states that “for the period between June 25, 2018 and until the entry into force of a normative act clarifying the norm (30 May 2022, date of publication of GEO No 71/2022), by expressly regulating the cases capable of interrupting the course of the term of prescription of criminal liability, the active substance of the legislation does not contain any case that would allow the interruption of the course of prescription of criminal liability”.

The Main Authorities Involved in the Fight Against Corruption

In Romania, the legislative and institutional framework for the fight against corruption is ‒ in a broad sense ‒ well established. However, the national anti-corruption strategy for 2020–24 is still to be applied – a process that is co-ordinated by the Ministry of Justice.

The National Anti-corruption Directorate

The criminal prosecution organisation that specialises in the fight against corruption is the DNA. It has the authority and competence to investigate medium-to-large corruption cases, whereas the (regular) Public Prosecutor’s Office investigates all other corruption cases. In contrast to previous years, there was a slight increase the number of cases registered on the dockets of the DNA following the removal of all restrictions related to COVID-19.

According to the DNA’s 2021 Activity Report, the institution aims to record an increase in the intensity and quality of the activity carried out in the coming years. The DNA also aims to make efficient use of the reports it receives from individuals or legal persons.

In 2016, the Romanian Constitutional Court ruled that the Romanian Intelligence Service (Serviciul Român de Informații, or SRI) can no longer perform wire tapping on behalf of the DNA ‒ nor can the DNA use any such evidence or SRI investigators in its performance of criminal investigations. Thus, the execution of the technical supervision mandates ordered in the criminal trials is carried out exclusively by judicial police officers from the DNA’s Technical Department. The DNA has publicly complained that it lacks the technical resources and knowhow ‒ as well as sufficient personnel – to do this.

There are currently approximately 150 prosecutors and 310 judicial police officers and specialists working for the DNA; however, these numbers are considered insufficient. A new project to increase the number of prosecutors and police officers in the DNA is being debated publicly.

Recent criminal investigations have focused on crimes involving the production, importation and distribution by companies of medical masks and other devices. Prosecutors performed several searches at the headquarters of companies and some criminal cases have also appeared before the court.

Additionally, the National Agency for the Administration of Seized Goods (Agenția Națională de Administrare a Bunurilor Indisponibilizate, or ANABI) ensures the management of assets that have been seized and confiscated as a result of crimes.

The new National Defence Strategy

According to a press release by the presidential adviser from the Department for National Security, the fight against corruption is being approached through multiple sections of the National Defence Strategy for 2020–2024 (the “Strategy”). The Strategy places great emphasis on the social component of national security, especially with regard to:

• increasing resilience and reducing internal vulnerabilities (including through the fight against corruption);
• the proper functioning of democracy and the rule of law; and
• strengthening administrative capacity.

In the new Strategy, corruption does not only represent a vulnerability (as  per previous strategies); it is now placed under the category of “security risk”. Thus, all stages of the corruption process ‒ from the establishment of illegitimate interest groups to the risk of overturning decisions made by the authorities of the state – are addressed respectively in multiple sections of the Strategy.

Furthermore, in the President’s view, the fight against corruption must proceed without impediment and with concomitant awareness-raising concerning the fundamental values of society. This is the crux of creating a culture of integrity in the public sector ‒ for only in this way will it be possible to eradicate the root causes of the corruption phenomenon.

The Section for the Investigation of Judicial Crimes

On 11 March 2022, Law No 49/2022 regarding the dismantling of the SIIJ entered into force, following promises by current politicians to disband the Section for the Investigation of Judicial Crimes (Secția pentru Investigarea Infracțiunilor din Justiție, or SIIJ) since their election.

From March 14, 2022, the prosecutors within the SIIJ (including those with management positions) returned to the regular prosecutors’ offices. The crimes that until now were under jurisdiction of the SIIJ are to be resolved by the Public Prosecutor’s Office with the High Court of Cassation and Justice and the Court of Appeal.

The Fight Against Fraud Department

Attempts by the European Anti-Fraud Office (Office européen de Lutte Antifraude, or OLAF) to combat corruption in Romania through the Fight Against Fraud Department (Departamentul pentru Lupta Antifraudă, or DLAF) should also be mentioned as an important component of the measures against defrauding EU subsidies. Thus, Romania is the first EU member state to be included in the latest OLAF report with regard to corruption investigations and tip-offs concerning EU funds, which strengthens the role of the DLAF in this area.

The National Integrity Agency

The National Integrity Agency (Agenția Națională de Integritate, or ANI) is responsible for the investigation of administrative conflicts of interest, incompatibilities and unjustified assets.

Its operation has produced positive results so far, as the sanctioning of incompatibilities and of conflicts of interest is an important element of combating and preventing corruption.

The ANI continues to deliver good results, including a total of 2,827 public procurement procedures that were analysed through the computer system PREVENT between April and June 2021. Of these procedures, around 20% relate to contracts financed by EU funds. At the same time, approximately a third of the total procedures involve 16,288 subsequent contracts. Moreover, during the same period, three integrity warnings were issued concerning a total amount of RON6.6 million.

The ANI has also developed powerful tools for preventing administrative conflicts of interest (particularly in the field of public procurement) and has carried out awareness-raising campaigns in national and local elections. Previous Co-operation and Verification Mechanism (Mecanismul de Cooperare și Verificare, or MCV) reports have highlighted the persistent issues faced by the legislative framework in terms of integrity and the need for stability and clarity.

The ANI proposed that the Ministry of Justice work with stakeholders to review legislation concerning integrity and strive towards developing a coherent and strengthened legislative framework. Even though the ANI has a substantially higher workload during election time, its budget has been reduced.

The European Public Prosecutor’s Office

The European Public Prosecutor’s Office (EPPO) was established by Regulation (EU) 2017/1939 as an independent body of the EU. The EPPO is the first EU body that can investigate and prosecute criminal offences.

The EPPO also has the power to investigate, prosecute and punish perpetrators of offences against the EU’s financial interests (as set out in Directive (EU) 2017/1371 and laid down in Regulation (EU) 2017/1939). Cases prosecuted by the EPPO are referred to the competent courts in the EU member states.

The EPPO will work in close co-operation with national judicial and law enforcement authorities. It will also work closely with other EU bodies such as OLAF, Eurojust and Europol.

Given the EPPO’s jurisdiction, an investigation has already been launched into alleged fraud with EU funds, with damages of over EUR3 million. The EPPO suspects three people of setting up an organised criminal group at the beginning of 2018, with the aim of defrauding EU funds intended for the development of the Danube Delta. To this end, the suspects set up a fraud scheme through seven companies, which they controlled either directly or through intermediaries.

Trends for the Future

As was the case in 2022, it is expected that the fight against corruption will continue throughout 2023 in a more intense fashion than previous periods as people are interested in relevant outcomes in this area. Even so, the criminal investigation authorities still look set to struggle with some problems in their day-to-day activities due to understaffing and political pressures on the justice system.

Nonetheless, every authority that handles corruption cases is anticipated to continue its activity with full force. As mentioned earlier, the DNA plans to intensify its activities and increase the quality of those carried out. One way to achieve these goals, as stated in DNA’s 2021 Activity Report, is by recruiting DNA members as prosecutors.

As for the opinion of the general public when it comes to the efforts of anti-corruption authorities, the public now tends to be more concerned about the fight against violent criminality ‒ for example, human trafficking (as a result of a case that horrified the public) and drug trafficking (there is a draft law in Parliament that will increase penalties). As such, the focus is not on  the results of the anti-corruption authorities and criminal investigations at the moment.

However, corruption among high officials has been heavily criticised in the media for being the reason why the fight against criminal networks and the handling of the pandemic was poorly managed. So the fight against corruption is sure to remain a constant in the efforts to ensure justice in Romania ‒ especially as the MCV is yet to be rescinded, even though efforts are being made at an administrative, political and judicial level to persuade the EU decision-makers that this supervision is no longer necessary.

However, as regards the adoption of the Whistleblower Protection Law, the authors believe that there will be a lot of challenges in terms of the EU Whistleblowing Directive’s requirement to establish or maintain internal reporting channels and procedures within public institutions or private companies. The EU Whistleblowing Directive, obviously, imposes measures to ensure the appropriate protection of persons reporting crimes within their companies, such as:

• the establishment of safe reporting channels; and
• protection against dismissal or other forms of retaliation.

Owing to contradictions in the national legislation transposing the EU Whistleblowing Directive, companies will have a hard time implementing these measures to support people who take risks in uncovering crimes such as fraud and corruption.

The Whistleblower Protection Law, which was recently adopted and sent for promulgation, significantly diminishes mechanisms that protect the integrity of whistle-blowers. As such, this transposition law will reduce opportunities for whistle-blowers to report the irregularities they find anonymously and will also affect the process of discovering crimes committed by the authorities.

The form of the national legislation transposing the EU Whistleblowing Directive has many deficiencies, which will undoubtedly lead to a lot of public controversy. However, the draft law on whistle-blower protection has been sent by the President of Romania to the Senate for reconsideration in order to remedy these shortcomings.

A number of constitutional provisions are also violated by this national law, so the authors believe that criticisms of the form it takes are justified. Overall, the Whistleblower Protection Law contains some vague, interpretable or even contradictory provisions.

Whistle-blowers will continue to be discouraged from reporting perceived illegal actions unless the Senate revises national legislation and establishes a legal framework in line with the EU Whistleblowing Directive. Whistle-blowers will also remain under the impression that they are not properly protected by national authorities, as the transposition law does not provide sufficient protection in terms of anonymous reporting, confidentiality, etc.

Moreover, the Whistleblower Protection Law approved by Parliament even has consequences for the private sector, as anonymous reporting is an effective method of preventing and detecting fraud in private companies.

It can be concluded that the fight against corruption in the public and private sector may be hindered if the legislator does not revise the transposition law as soon as possible. In this respect, it is important to mention that the ECHR recently found an infringement in the case Poienaru v Romania. Essentially, the ECHR stated that the national courts failed to analyse the extent to which the claimant benefited from the legal protection of whistle-blowers.