.

Strasbourg, 23 March 2018

Greco-AdHocRep(2018)2

Ad hoc Report on ROMANIA

(Rule 34)

Adopted by GRECO
at its 79th Plenary Meeting
(Strasbourg, 19-23 March 2018)
I. INTRODUCTION

1. In 2017, a series of reforms were initiated concerning Romania’s

justice system, prompting a wave of unprecedented public protests and
concerns expressed by nearly half of the country’s judges and prosecutors,
as well as by several countries and international institutions, about the
consequences of the intended reforms for the independence of judges and
prosecutors. A number of constitutional challenges have been filed and the
Parliament is currently reviewing the draft provisions. This occurred in
parallel with the on-going compliance procedure in GRECO’s Fourth
Evaluation Round (covering, inter alia, corruption prevention in relation to
judges and prosecutors).

2. Against this background GRECO decided at its 78 th Plenary Meeting

(4-8 December 2017), when it adopted the Fourth Evaluation Round
Compliance Report1,to apply Rule 34 of its Rules of Procedure in respect of
Romania. This Rule provides for an ad hoc procedure which can be
triggered in exceptional circumstances, such as when GRECO receives
reliable information concerning institutional reforms, legislative initiatives or
procedural changes that may result in serious violations of anti-corruption
standards of the Council of Europe. In its decision, GRECO requested
additional information concerning the draft legislative amendments currently
before the parliament concerning the judiciary. The information was
submitted by the Romanian authorities on 15 January 2018.

3. Because of the complexity of the issues at stake and the on-going

nature of the reform process, an on-site visit was approved by the
Romanian authorities. Ms Panagiota VATIKALOU (Greece) and Ms Vita
HABJAN BARBORIČ (Slovenia) were appointed as rapporteurs for this ad
hoc evaluation, assisted by Christophe SPECKBACHER from the GRECO
Secretariat. This ad hoc GRECO Evaluation Team (hereinafter the GET)
held a series of meetings and interviews in Romania on 21 and 22 February
2018. The GET met with the Minister of Justice and other representatives of
this ministry, members of Parliament, the Office of the President, the
Superior Council of Magistracy, and the Prosecutors Office. The GET also
met with civil society and professional organisations (NGOs, associations of
judges and prosecutors), and representatives of international institutions
(European Commission) and countries.
1
See paragraph 91 of the report
4. The current Rule 34 ad hoc report, drawn up by the rapporteurs,
contains a summary description of the legislative and other measures
planned by Romania within the context of the judicial reform and in
connection with the functioning of the criminal justice system as a whole. It
also describes a number of reactions to these intended amendments from
national institutions and professional organisations of judges and
prosecutors, the European Commission and others. The report contains an
analysis of the particular impact the intended legislation would have in
respect of the corruption prevention standards developed by the Council of
Europe and GRECO.

II. CONTEXT AND BACKGROUND INFORMATION

5. The proposed legislative amendments described above must be seen

in the broader context. In parallel to the amendments concerning three
justice laws (Law no. 303/2004 on the status of judges and prosecutors,
Law no. 304/2004 on judicial organisation and Law no. 317/2004 on the
Superior Council of Magistracy), a process was initiated shortly after the
GRECO plenary meeting of 4-8 December, to amend the criminal
procedure, reportedly to implement the EU Directive on the presumption of
innocence. Around the same period, a further series of three laws were
registered in Parliament which contain, inter alia, amendments to the
incriminations of bribery and trading in influence, and to the offence of
abuse of office, which are relevant to the functioning of the criminal justice
system as a whole and its response to corruption specifically. These various
draft proposals concerning procedural and substantive criminal law are a
further source of controversy and concerns 2. Last but not least, the activity
of the National Anti-Corruption Directorate (DNA - the specialist anti-
corruption prosecutor’s office) has also been questioned and potentially
affected by statements directed towards both the institution and its head
(often emanating from persons actually prosecuted by the DNA or closely
connected to them)3.
2
https://www.romania-insider.com/tens-thousands-join-first-big-protest-year-romania/ ;
https://www.irishtimes.com/news/world/europe/romanian-ngos-demand-halt-to-judicial-and-anti-graft-
overhaul-1.3339127
3
See for instance http://www.romaniajournal.ro/ghita-makes-new-accusations-against-anti-corruption-head-
kovesi-intelligence-general-coldea-european-arrest-warrant-issued-against-ex-deputy/
http://www.romaniajournal.ro/update-cnatdcu-general-council-verdict-laura-codruta-kovesi-has-not-
plagiarised-reactions-and-contestations/
The legislative process concerning the three laws on the judiciary and other
amendments

6. In 2015 and 2016, a series of consultations were held with bodies

representing the judges and prosecutors of Romania, including the
Supreme Council of Magistracy (CSM) on various judicial reform initiatives.
The Ministry of Justice elaborated a Draft law amending and supplementing
Law no. 303/2004 on the status of judges and prosecutors, Law no.
304/2004 on judicial organisation and Law no. 317/2004 on the Superior
Council of Magistracy (the ”draft Law”).

7. On 23 August 2017, the Minister of Justice eventually presented the

objectives of the reform by means of a press conference and a PowerPoint
presentation4. The on-site discussions held by the GET revealed that the
objectives of the reform had, at times, gone far beyond the earlier
consultations, and reportedly included elements which had not previously
been discussed. The GET was told that many judges and prosecutors
discovered the actual content of the proposed changes through the media.
Later on, the CSM disseminated the draft Law to all the courts and issued a
(first) negative opinion. Against the background of public protests, the
government did not commit its responsibility for the draft Law. The latter
was nonetheless taken over by Parliament and those met by the GET had
different readings as to the way this happened.

8. The fact of the matter is that on 29 September 2017, the two chambers
of Parliament established a new special joint committee – the Committee of
the Chamber and Senate for the systematisation, unification and ensuring
legal stability in the field of justice. About one month later, on 25 October,
the Minister of Justice presented his proposals to the Committee. The
http://www.romaniajournal.ro/dnas-kovesi-notifies-csm-regarding-the-statements-made-by-senate-
speaker-tariceanu/
4
See http://www.just.ro/principalele-modificari-propuse-la-legile-justitiei-legea-nr-3032004-legea-nr-
3042004-si-legea-nr-3172004/. The press release stated that the main amendments concern the conditions of
access to the magistracy, the career of magistrates, including the conditions of promotion to a higher or
specialised court or prosecutor's office and the abolition of “on-the-spot” promotions, modifications of the
terms of mandates of senior functions, the suspension of functions (as a judge or prosecutor) during the
mandate as a member of the Superior Council of Magistracy (CSM), a greater separation between judges and
prosecutors in the CSM’s decision-making process regarding careers, the procedure for appointment to senior
positions at the High Court of Cassation and Justice (HCCJ) and in the prosecution services, the magistrates'
individual liability (for mistakes), the establishment of a specialised directorate within the Public Ministry
with exclusive competence for the criminal prosecution of magistrates, as well as the transfer of the Judicial
Inspectorate under the responsibility of the Ministry of Justice.
Romanian authorities explained after the visit that the Minister actually gave
a presentation in accordance with article 111 of the Constitution 5. This stage
of the process before the special committee is not well documented 6 and
three working documents in table format (all dated 25 October) have been
posted on-line7. The CSM and the General Prosecutor’s Office were among
those issuing public criticism about the process8.

9. The GET was told that, in the following days, a series of discussions
took place and three formal motions for a draft law were submitted on 31
October, by 10 MPs and registered by the Permanent Bureau of the
Chamber9 whilst, in parallel, 3 900 judges and prosecutors signed a public
manifesto against the reform10. Each of the draft laws was accompanied by
a short explanatory report (about one page) 11. The urgent procedure was
5
“The Government and the other bodies of the public administration, within the parliamentary control of their
activity, are obliged to present the information and documents required by the Chamber of Deputies, the Senate
or the parliamentary commissions through their presidents. (...) Government members have access to
Parliament's work. If attendance is required, their participation is mandatory". [highlighted by the
Romanian authorities]
6
Despite various headings referring to the agenda and working documents on the webpage of the Committee
hosted by the Senate’s website (https://www.senat.ro/Comisie_new.aspx?Zi&ComisieID=fcd47296-4b0c-
4848-bfc2-d0a1cc2cae60) there is no concrete information available there. The webpage hosted by the
Chamber’s website (http://www.cdep.ro/co/sedinte2015.lista?tip=221&an=2017) only lists the agenda,
starting on 22 November.
7
These appear on a webpage of the Chamber of Deputies, listing working documents of the committee for the
year 2017: http://www.cdep.ro/pls/proiecte/upl_com2015.lista?idc=221&an=2017
8
The CSM issued a public statement criticising the process and noting that the draft Law “had been sent
directly to Parliament at its request”. With similar words, the Prosecutor General’s Office stated that the
“diversion of the declared path of the amendments - from the legislative initiative of the Government through
the Ministry of Justice to the transmission of these amendments to the Joint Special Committee (…) does not
meet the standards required in terms of public debate and inter-institutional dialogue”.
9
The following links document the parliamentary process:
Pl-x nr. 417/2017 – legislative proposal to amend law nr.304/2004 on the organization of the judiciary
Pl-x nr. 418/2017 – legislative proposal to amend and complement law nr.303/2004 on the statute of judges
and prosecutors
Pl-x nr. 419/2017 – legislative proposal to modify and complement law nr.317/2004 on the organization and
functioning of the Superior Council of Magistracy
10
http://www.forumuljudecatorilor.ro/index.php/archives/2866
11
As regards the amendments to law n°304/2004, the report enumerates in general terms the rationale: 1)
need to take into account a constitutional decision and to transfer certain prerogatives of the sections of the
CSM to the plenary; 2) increase to 90 days (as opposed to 30 days, currently) of the deadline for the drafting of
court judgements: 3) in agreement with the ministry of justice, necessity of creating a special directorate
within the Prosecutor’s Office attached to the High Court of Cassation and Justice (HCCJ), to investigate
offences of magistrates;
As regards the amendments to law n° 303/2004, the report refers to: 1) the need to take into account certain
decisions of the constitutional court; 2) establishing the conditions for the appointment to senior positions at
the HCCJ and at the Prosecutor’s Office attached to it, DNA and DIICOT; 3) introduction of a period of
traineeship of 3 years in various services; 4) need to establish a system for the suspension of duties; 5) need to
review the liability of magistrates, the statute of limitation for the protection of injured persons and redefining
applied and the drafts were subsequently sent for opinion to the
Government, the Legislative Council and the CSM (expected by 9
November). The process and timelines were basically the same for the
three drafts, which carried amendments to three organic laws on the
judiciary. The CSM, which was not able to comply with those short
deadlines, issued a negative opinion on all three draft Laws.

10. On 13 November, the three draft Laws were transmitted to the special
committee with a deadline of 20 November for the formal submission of
revised drafts, and of 27 November for the submission of a final report.
During the first half of December 2017, the special committee finalised its
reports (one or two pages in text format, the rest in form of a table). The
three bills were subsequently adopted by the Chamber on 11-13 December
and by the Senate on 19-21 December.

11. Large public protests took place during that period 12 followed by public
statements issued by foreign embassies on 27 November and 21
December13 calling on “actors involved in the judicial reform project to
refrain from any action resulting in a weakening of the independence of the
judiciary and of the fight against corruption, and to seek without delay the
necessary advice of the Venice Commission in order to ensure that the
independence of the judiciary is preserved and the reform process in
general remains intact.”

12. On 15 December, the special committee started to examine

amendments to the criminal procedure code 14. The GET was informed that,
in the following days, intensive work was conducted. On 21 December
2017, three draft laws submitted by a group of more than 40 MPs from the

the expression “bad faith” and “serious negligence”

As regards the amendments to law n°317/2004, reference is made to 1) the need to restore normality and to
take into account several constitutional court decisions; 2) need to amend the appointment for the leadership
in the HCCJ and in the Prosecutor’s Office attached to the HCCJ; 3) “in view of the information reported
recently in mass media, we believe that there is a need to transform the Judicial Inspectorate into an
autonomous institution, so as to preserve its independence from other sate powers, as well as to remove
suspicions regarding its activity.”
12
See for instance http://www.dw.com/en/in-romania-thousands-rally-against-proposal-to-water-down-
corruption-laws/a-41539714
13
See http://www.dailyherald.com/article/20171127/news/311279857 and
https://www.facebook.com/DutchEmbassyRomania/posts/1802313063112358
14
A working document in form of a table was uploaded on 15 December on a webpage listing the documents
of the committee; see item 9 at http://www.cdep.ro/comisii/suasl_justitie/pdf/2017/rd_1215.pdf
main ruling party and carrying amendments to the Criminal Code (CC) and
the Criminal Procedure Code (CPC)15 were registered by the Senate16.

13. On 27 December, several constitutional challenges have been filed

against the three justice laws by MPs and the High Court of Cassation and
Justice. Shortly after, in January 2018, the Prime Minister resigned 17 and
there was a government reshuffling (the Minister of Justice retained his
functions).

14. The Constitutional Court rendered its decisions on 23 and 30 January

and on 13 February 2018 and declared unconstitutional several provisions.
The decisions have been published in the following weeks (as a rule, the
Court has to draft its rulings within 30 days). The latest constitutional
challenges, which were filed on 25 January 2018 and questioned the
constitutionality of the legislative process as a whole, were dismissed as
they did not meet formal requirements (deadlines, number of signatures).
The GET was told that the Parliament will have to review (only) those
provisions addressed in the Court’s findings and that in principle, this work
will not entail a broader general review. The Parliament may amend other
provisions only insofar as these cannot be dissociated from those which
have been declared unconstitutional. The authorities indicated in their latest
submission that the Chamber of Deputies adopted on 20 March 2018

15
English versions of the CC and CPC can be found at
http://www.legislationline.org/documents/section/criminal-codes/country/8
16
Legislative proposal 2017-686 (B686/2017):
See https://www.senat.ro/legis/lista.aspx?nr_cls=b686&an_cls=2017 ; it comprises a single article aiming to
amend art. 175 CC on the definition of public servants with a view to excluding “persons who have been
elected to positions of public dignity”. The draft was sent for an opinion to the Legislative Council, to the
Supreme Council of Magistracy and to the Government. On 5 March, the former issued a negative opinion.
Legislative proposal 2017-687 (B687/2017):
See https://www.senat.ro/legis/lista.aspx?nr_cls=b687&an_cls=2017 –aims inter alia at amending the
incriminations of bribery and trading in influence (art. 289, 290, 291, 292), by specifying that the undue
advantage must be tangible, by removing the third party beneficiaries of undue advantages (“for someone
else”, natural or legal person) and the “indirect” element of the offence (e.g. use of intermediaries or third
party initiators for trading in influence). The offence of abuse of office would remain a criminal offence only
insofar as the illegal benefit or damage would amount to 200 000 euro or more. Abuse of powers for sexual
favours would be abolished;
Legislative proposal 2017-688 (B688/2017):
See https://www.senat.ro/legis/lista.aspx?nr_cls=b688&an_cls=2017 –provides for instance for a review /
reduction of the statutes of limitations, higher financial thresholds for the application of certain aggravating
circumstances (“particularly serious consequences”), offences which are specific to the judiciary are reviewed
or added, e.g. inducing a judicial body into error, “unjust repression”, “remanding, arrest or other preventive
measure applied to a person in the absence of concrete evidence”, “abuse of judicial powers” is added with
penalties of up to seven years imprisonment.
17
http://www.bbc.com/news/world-europe-42697971
revised versions of the three laws and published these the day after on its
website; the Senate is now to examine these.
III. ANALYSIS BY GRECO

15. The following analysis focuses on certain aspects of the draft

amendments currently in Parliament. This new legislation is considered
within the particular framework of GRECO’s Fourth Evaluation Round,
covering, inter alia, corruption prevention in respect of judges and
prosecutors.

16. The broader context is also taken into account, especially other
intended reforms regarding the criminal legislation and the situation of the
DNA. Many interlocutors met on-site (both from the public and civil society
sectors) agreed that, should the controversial elements in the various
segments of the current reforms (judicial institutions, procedural and
substantive criminal law) be adopted and enter into force, they have the
potential to affect the criminal justice capacity to deal with corruption and
other offences involving senior officials; interlocutors also pointed to the
political rhetoric used to justify those changes18.

17. It is recalled that the risks of set-backs as regards legislation and anti-
corruption efforts more generally has been a recurring issue in respect of
Romania over nearly a decade. This has been documented repeatedly in
previous GRECO reports19 which have expressed concerns including about
attacks on the anti-corruption bodies and legislative amendments using
expedited or emergency procedures sometimes decided overnight 20.
Moreover, avoiding such situations and ensuring legislative stability and
transparency has also been one of the important commitments of Romania
in the CVM (Cooperation and Verification Mechanism) process of the
European Union21.

18
See for instance:
https://www.romania-insider.com/psd-statement-parallel-state/;
https://www.agerpres.ro/english/2018/02/12/social-democrat-head-dragnea-increasingly-more-evidence-
emerges-about-parallel-state-s-existence--53345
19
See: paragraph 95 of the Third Round Evaluation Report – Theme I Incriminations – of December 2010;
paragraphs 13 et seq. (referring i.a. to the “Black Tuesday” of December 2013). and paragraphs 19 et seq. of
the Fourth Round Evaluation Report of December 2015; and more recently paragraph 69 of the March 2017
addendum in Romania’s Third Round Compliance Procedure in relation to the so-called “Government
Emergency Ordinance 13”.
20
See also https://www.theguardian.com/world/2017/feb/01/romanians-protests-emergency-law-prisoner-
pardons-corruption
21
https://ec.europa.eu/info/strategy/justice-and-fundamental-rights/effective-justice/rule-law/assistance-
bulgaria-and-romania-under-cvm/reports-progress-bulgaria-and-romania_en
The legislative process leading to the justice laws

18. The circumstances in which the amendments to Law no. 303/2004 on

the status of judges and prosecutors, Law no. 304/2004 on judicial
organisation and Law no. 317/2004 on the Superior Council of Magistracy
were adopted are a clear illustration of Romania’s need to substantially
improve the transparency of its legislative practices. A recommendation was
already issued in this respect in the 4th Round Evaluation Report22.

19. Although the Minister of Justice and the ruling coalition parties met in
Parliament have insisted on the transparency and broad nature of the
consultations held, it should be pointed out that most interlocutors met by
the GET have stressed that the draft elaborated and presented in August
2017 by the Minister of Justice went far beyond the earlier discussions and
consultations held since 2015 (some even said that they did not have much
in common). In particular, despite the fact that many features of the
intended reform may have pursued a legitimate objective of modernisation
and updating of the justice system, the inclusion of many changes – often
perceived as constituting a threat to the independence of the judiciary and
the operational independence of prosecutorial bodies – are difficult to
understand and have contributed to the development of a climate of
suspicion.

20. The modalities and timing of presentation of the intended reform

(through the media in the middle of the Summer) did not contribute to
securing adherence to, and trust in such reforms by those who are first and
foremost concerned with their implementation, namely the magistrates
themselves. From that perspective, the claims that particular attention was
paid to participatory efforts which have effectively been deployed since
2015 have not fulfilled their purpose.

21. Moreover, this wide ranging judicial reform involved amendments to

three organic laws and pursued, inter alia, the declared objective of
addressing concerns raised by various constitutional court decisions
rendered in recent years. As such, it should have been conducted in a
proper and concerted manner, leaving much more time to work out
consistent amendments, to improve existing laws and double check the
coherence of provisions across the various laws. During the discussions
with the GET, several examples of remaining inconsistencies were given
22
See recommendation i) in the GRECO Evaluation Report, available at https://rm.coe.int/16806c7d05
and many pointed to the volume of information and amendments which had
to be handled in a particularly short time span (see also paragraph 28 et
seq.).

22. Instead, after the broad protests against the ministerial draft of August
2017, and following the subsequent disengagement of the Government
from this initiative, a legislative process was started in haste in Parliament
on the basis of a disputed procedure involving a new special joint
committee. It has been argued by some interlocutors met by the GET that
this committee had no appropriate competence to deal with the reform of
judicial institutions (its competence was limited to dealing with amendments
to the criminal code and criminal procedure code), until its terms of
reference were extended ex post facto on 20 November for it to be able to
deal with “all normative acts in the field of justice”, after approximately one
month of work. The Romanian authorities indicate that the Constitutional
Court in a decision no. 828 of 13 December concerning another challenge
filed against the lack of competence of the committee, noted that “it was
constituted for the elaboration of legislative proposals referring to the Code
of Criminal Procedure, the Criminal Code and the laws in the field of
Justice”. The GET also heard that measures had been taken to limit the
ability of the opposition to bring up in plenary debate certain objections
which had not been retained in committee discussions. It was finally
brought to the attention of the GET that the committee did not draw up
minutes of its meetings, and that its board never met (the rules of the
committee reportedly give broad powers to its president 23 as regards
organisational decisions).

23. For many, even the previous Prime Minister 24, the ministerial bill was
just sent directly to Parliament without governmental approval, and
converted into parliamentary drafts, even though the Minister of Justice
claims that he just gave a presentation at the Parliament’s request. The
parliamentary process was concluded in just two months. The GET shares
the concerns expressed by many that the whole process should have been
accompanied by proper impact assessments as regards the institutional,
legal and financial implications of the many aspects of the reform, including
for the overall structure of the professional body of judges and prosecutors.
23
It was also pointed out that the current president is the former Minister of Justice who was responsible for
the presentation of the controversial Government Emergency Ordinance 13 in January 2017; see
http://www.romaniajournal.ro/pm-grindeanu-i-was-aware-geo-13-will-be-on-the-agenda/
24
See an interview of the former Prime Minister of 10 January 2018 at https://www.stiripesurse.ro/pm-
tudose-on-justice-laws-any-law-can-be-perfected_1242007.html
During the on-site discussions, the GET witnessed a number of
disagreements among Romanian interlocutors as to the actual implications
of many changes approved so far by Parliament. These had a lot to do with
the absence of proper impact assessments, which has opened the door to
lengthy speculations. The latter concerned such essential aspects – for the
continuity of one of the State’s core functions – as the number of judges
and prosecutors who would retire in a foreseeable time, should the laws
enter into force. Among various incidents brought to the GET’s attention,
some associations have reportedly been denied participation in the
committee’s discussions and the legitimacy/legality of certain amendments
made at the very end of the process has occasionally been questioned.

24. The GET also heard praise for the fact that the special committee’s
work and discussions in November 2017 on the three justice laws was
broadcasted, which was apparently a “first” and a response to criticism on
the lack of transparency of the legislative process up until then. The fact
that some civil society organisations / professional associations had been
actively associated to the discussions was also appreciated by many of
those the GET met while some of them saw their participation as a
necessity in order to prevent the adoption of more problematic
amendments. Overall, during the on-site discussions, some members of
Parliament and associations expressed satisfaction with the process and
praised the fact that, at the present stage, following the debate and many
amendments in Parliament, a number of problematic changes had
eventually been abandoned or watered down. Others stressed that there
was a need to significantly improve the texts and hoped that this could be
done soon, when Parliament reviews the drafts to reflect the Constitutional
Court’s decisions.

25. As to the next steps, now that the Constitutional Court has rendered its
decisions on the four constitutional challenges, the Parliament will have to
review the three draft laws and make the necessary adjustments. The
President of Romania retains the possibility to ask (once) the Parliament to
review the laws and he may himself challenge their constitutionality before
the Constitutional Court.

26. It would appear that a comprehensive review of the criminal

procedure is also being discussed by the special joint committee in the
context of the implementation of the EU Directive 343/2016 on the
presumption of innocence. In this case too, a lack of transparency is
observed as the discussions appear to be conducted since 15 December
on the basis of a mere table summing up the intended changes 25. It remains
unclear whether the process is documented by verbatim records of
discussions and position papers presented to the committee, and
accompanied by legislative supporting documentation (explanatory report,
impact assessments etc.).

27. The process has shown once again the importance for Romania to
take full account of and implement the recommendations contained in
GRECO’s Fourth Evaluation Report; GRECO reiterates that the
transparency of the legislative process be improved (i) by further
developing the rules on public debates, consultations and hearings,
including criteria for a limited number of circumstances where in
camera meetings can be held, and ensuring their implementation in
practice; ii) by assessing the practice followed and accordingly
revising the rules to ensure that draft legislation, amendments to such
drafts and the agendas and outcome of committee sittings are
disclosed in a timely manner, and that adequate timeframes are in
place for submitting amendments and iii) by taking appropriate
measures so that the urgent procedure is applied as an exception in a
limited number of circumstances.

Particular concerns raised by amendments to the three justice laws

28. The draft amendments to Law no. 303/2004 on the status of judges
and prosecutors, Law no. 304/2004 on judicial organisation and Law no.
317/2004 on the Superior Council of Magistracy carry a number of changes.
In the adoption process, several hundred amendments have been
submitted, 316 of which have been accepted. Several provisions now need
to be redrafted before the texts are sent to the President for promulgation.

29. As the GET noted during the on-site discussions and in the many
position papers it has received, a number of aspects of the reform remain a
source of concern both for the general institutional capacities of the courts
and prosecution offices and the risk of political and other undue influence at
various levels. It also remains to be seen how those provisions which have
been invalidated in full or in part by the Constitutional Court will be
redrafted. As mentioned earlier, the Chamber of Deputies adopted on 20
March 2018 revised versions of the three laws and published these the day
25
See item 9 at http://www.cdep.ro/comisii/suasl_justitie/pdf/2017/rd_1215.pdf
after on its website; the Senate is now to examine these. The following
paragraphs focus on some of the most controversial issues raised during
meetings with the GET.

- Risks of drainage in the magistracy and of arbitrariness in promotions

30. Several changes pertaining to the recruitment and retirement of judges

and prosecutors in Law 303/2004 may have, because of their combined
effect, a significant impact on the work force and the general capacities of
courts and prosecutorial bodies especially since no transitional period has
been planned. Magistrates would be able to retire early, after just 20 years
of service without any condition of age (with pensions which could amount
to 75 % of the last gross salary, i.e. up to 120% of the last net salary in
exceptional cases). This could constitute a powerful incentive for many
judges and prosecutors – especially in the higher ranks of the judiciary – to
retire very soon. According to certain estimates, approximately 1 500 to 2
000 magistrates (out of approximately 8 000) would benefit from these new
arrangements. Regarding the High Court of Cassation and Justice (HCCJ)
alone, 94 judges out of 115 are potentially concerned (the rest would be in a
position to retire within the next five years). If adopted, the draft legislation
would also introduce a minimum seniority of 18 years as a magistrate in
order to be eligible to a vacancy in the HCCJ, for a theoretical service time
of just two years if that person intends to retire after 20 years; this would
potentially affect the adequate handling of many cases by the HCCJ. At the
same time, the initial and practical training of new recruits is increased to
six years altogether (instead of four under the current rules), which could
create a gap of several years until the workforce is recreated. The above
scenario could affect the functioning of the judiciary as a whole (backlogs of
cases, dismissals of cases due to the statute of limitations and delays in
administering justice).

31. The intended amendments still contain a proportion of subjectivity in

the selection and decision process concerning promotions, which
contemplates a two-phased promotion procedure, the latter phase
consisting of an assessment of one’s past work and conduct 26. The
amendments also provide for the CSM to develop and adopt rules on the
procedure for organising such assessments including appointments to the
26
The current process which involves a written examination or competition organised centrally would be
complemented with a system of assessment of the activity and conduct in the last three years, involving an
interview before a commission (for vacancies in the HCCJ), but a mere file (desk) review for all the other
magistrates.
responsible commission and the particular aspects to be assessed 27. The
GET heard fears that this new system would leave more room for personal
or political influences in career decisions, which could impact the neutrality
and integrity of the justice system and it would thus be essential that the
CSM develops appropriate rules to guard against such risks, including clear
and objective criteria to guide the future decisions of the selection
commission.

32. Because of the risks and uncertainties referred to above, GRECO

recommends that i) the impact of the changes on the future staff
structure of the courts and prosecution services be properly assessed
so that the necessary transitional measures be taken and ii) the
implementing rules to be adopted by the CSM for the future decisions
on appointments of judges and prosecutors to a higher position
provide for adequate, objective and clear criteria taking into account
the actual merit and qualifications.

27
Article 463 of Law 303/2004
 - The new special prosecutor’s section for the investigation of offences
in the judiciary

33. One of the most controversial changes is the creation, through an

amendment to Law 304/2004, of a new Section for the Investigation of
Offences in the Judiciary within the Prosecutor’s Office attached to the High
Court of Cassation and Justice (HCCJ) to investigate and prosecute
criminal offences committed by magistrates. The GET did not receive
convincing information supporting the creation of this section 28. The latter is
considered by many as an anomaly in the current institutional set-up, in
particular because (i) there have been no particular data or assessments
demonstrating the existence of structural problems in the judiciary which
would warrant such an initiative, (ii) of the way its management is
appointed29, and (iii) this section would have no investigators and adequate
investigative tools at its disposal, unlike other specialist prosecution bodies.
It has also been pointed out that this body would be immediately
overburdened due to the (draft) arrangements providing for the immediate
transfer of many cases from other prosecution services, whilst its small staff
is not commensurate to dealing with them (15 in total according to draft
legislation)30.

34. Moreover, this new section would be dealing with criminal offences
even if other persons are involved, together with magistrates (e.g. civil
servants, elected officials, businessmen etc.), according to the wording of
the intended amendments to article 881 paragraph 11 of law n°304/2004. As
many have pointed out, this could lead to conflicts of jurisdiction with the
existing specialised offices (DNA, DIICOT, military prosecutor’s offices),
even though the authorities recall that such conflicts are normally sorted out
by the Prosecutor General. More importantly, there are also fears that this
section could easily be misused to remove cases handled by the
28
The authorities have subsequently indicated that in one of its recent decisions, the Constitutional Court,
refers inter alia to the fact that the creation of this Section is a guarantee for, and a safeguard of the principle of
the independence of the judiciary especially concerning the judges, that it would provide adequate protection
for the magistrates against pressures and abuses through arbitrary criminal complaints, and that it would
facilitate a unified judicial practice in respect of criminal offences allegedly committed by magistrates.
29
The Chief Prosecutor of the Special Investigative Office will be appointed by a CSM panel composed of 3
judges designated by the Judges Section, a prosecutor appointed by the Prosecutors Section, a representative
of the civil society. This contradicts the fact that all other prosecutors are appointed by the Prosecutors Section
of the CSM.
30
In 2017, there were about 3500 criminal complaints made against judges and prosecutors; even if a large
proportion may be ill-motivated and concern cases of parties disappointed by a judicial decision, according to
certain estimates these could still translate into a few hundred cases which would require closer examination.
specialised prosecution offices or interfere in sensitive high-profile cases if
complaints against a magistrate were lodged incidentally in that case as it
would automatically fall under the competence of the new section (a
decision would then need to be taken to split that case under the general
criminal procedure law on the grouping/splitting of cases, for it to remain in
the hands of the originally competent prosecutors).

35. In the light of the above, GRECO recommends that the creation of
the new special prosecutor’s section for the investigation of offences
in the judiciary be abandoned.
 - Risks of weakening of the prosecutors’ status, especially their
independence

36. The draft amendments reduce in some respect the powers of the
executive, especially by abolishing the possibility for the Ministry of Justice
to initiate disciplinary proceedings against a judge or prosecutor.

37. That said, as regards prosecutors specifically, many of those met by

the GET have expressed concerns about the implication of various intended
changes for the position of the prosecutorial bodies vis-à-vis the authority
and responsibilities of the executive branch (Minister of Justice). The
purpose of the amendments is reportedly to align the legal provisions (in
Law n°303/2004) with the Constitution and to replace the expression “the
prosecutors appointed by the President of Romania enjoy stability and are
independent, according to the law”, by “The prosecutors shall carry out their
activity according to the principle of legality, impartiality and hierarchical
control, under the authority of the Minister of Justice.” The guarantees of
independence and stability would thus disappear and a reference to their
independence is retained in a new provision only with regard to the
“settlement of solutions” (“Prosecutors are independent in the settlement of
the solutions, under the conditions stipulated by the Law no. 304/2004 on
the judicial organisation (…)”).

38. The GET was told that, up until now, the Constitutional Court had
considered that prosecutors are largely equated with judges when it comes
to their guarantees of independence, and that the intended changes
actually constitute a regression. The combined effect of the removal of the
guarantees of independence and stability are a cause of concerns, since
another amendment broadens the possibilities for hierarchical superior
prosecutors to invalidate decisions taken by hierarchically inferior
prosecutors, not only if unlawful but also if ungrounded (the former is
however required to do it in a reasoned manner, which is a safeguard). The
modified status of prosecutors is also reflected in various other areas 31.

31
For instance, the judicial inspectorate would be reorganised in such a way as to put it under the
responsibility and authority of a Chief Inspector (with lesser involvement of the CSM regarding the selection of
inspectors, and the adoption of internal rules), appointed by a panel of CSM members comprising three judges
but only one prosecutor, in addition to a civil society representative and a psychologist. Some also regretted
that the CSM would be presided systematically by a judge in future (this was challenged successfully before the
Constitutional Court) and others wondered to what extent prosecutors would benefit from the future role of
the CSM (deciding in plenum) in matters related to the defence of the “independence of the judiciary”.
39. At the same time, the draft amendments provide for further important
changes. In particular, the revised procedure for appointing senior
prosecutors limits the right of the President of the Republic to refuse only
once the candidate(s) proposed by the Minister of Justice (as opposed to
several refusals under the current rules). Overall, the GET regrets again the
absence of adequate assessments of the implications of the various
intended changes, for the position and actual operational independence of
prosecutors. It recalls opinion n°9 adopted in 2014 by the Consultative
Council of European Prosecutors, which stressed inter alia that “The
independence and autonomy of the prosecution services constitute an
indispensable corollary to the independence of the judiciary. Therefore, the
general tendency to enhance the independence and effective autonomy of
the prosecution services should be encouraged”. 32

40. Because of the many uncertainties, GRECO recommends i) ensuring

that the independence of the prosecution service is – to the largest
extent possible – guaranteed by law, and ii) assessing the impact of
the intended changes on the future operational independence of
prosecutors so that additional safeguards be taken, as necessary, to
guard against interference.

- Specific issues concerning the rights and obligations of judges and

prosecutors, including incompatibilities

41. The draft amendments to Law n° 303/2004 currently contemplate a

number of new obligations, some of which have been challenged
successfully before the Constitutional Court; they will thus need to be
withdrawn or amended, depending on the case, when the Parliament
reviews the draft laws. These concern conflicts of interest, the duty for
judges and prosecutors to be and appear to be independent, the duty for
judges and prosecutors “to refrain from any kind of act of defamation in act
or expression, against the other powers of the State – legislative and
executive”.

42. Many of those met by the GET have expressed concerns about such
provisions for their lack of clarity and their concrete implications. This is all

https://wcd.coe.int/ViewDoc.jsp?
32

p=&Ref=CCPE(2014)4&Language=lanEnglish&Ver=original&BackColorInternet=DBDCF2&BackColorIntranet
=FDC864&BackColorLogged=FDC864&direct=true
the more relevant as they would normally entail disciplinary liability and
should therefore be sufficiently clear and predictable. It should also be
reminded that, quite ironically, in the context of the CVM process the
European Commission has repeatedly insisted for the inclusion of
measures against verbal and other attacks, but to protect the work of
magistrates against such attacks from political leaders and other persons.

43. The draft amendments to Law n°303 provide for a series of possibilities
to suspend temporarily the functions of judges and/or prosecutors at his/her
request: a regime of “voluntary suspension”, a regime of “voluntary time-off”
and a special regime for those who become members of government.

44. These different regimes are not easy to distinguish. They entail,
however, different consequences as regards legal incompatibilities and
prohibitions. Greater consistency would be desirable, so that judges and
prosecutors do not engage in activities or deal with files (as a consultant or
lawyer) which would clearly be problematic. Concerns have also been
expressed that, in the absence of proper safeguards to authorise or not, or
only under certain circumstances, a suspension or time-off period, the
functioning of certain courts or prosecution services could be disrupted in
case of requests of combined application of these provisions by several
magistrates at the same time. The above draft amendments have been
found unconstitutional and they will thus need to be removed.

45. Particularly problematic are the new intended arrangements for a

magistrate taking up duties in government. Currently, a judge or prosecutor
would have to resign to take up a government function. Under the planned
amendments, however, the judge or the prosecutor would be placed “on
leave” while serving in a government capacity, but there would be no
cooling-off arrangements when the judge or the prosecutor resumes his/her
work. It would be desirable to have more specific restrictions on the
simultaneous holding of the office of magistrate and that of a member
government and more generally, that the issue of political activity of
magistrates be dealt with in all its aspects at legislative level, given its
impact on the fundamental principles of independence and impartiality, both
real and perceived, of the judiciary. The GET heard recurrent criticism about
the fact that the profession of judges has become quite politicised in recent
years and it is pleased to hear from the Romanian authorities (in their latest
information) that the revised draft amendments adopted by the Chamber on
20 March 2018 have completely abandoned the various intended
suspension regimes. GRECO therefore recommends avoiding the
creation of new avenues for conflicts of interest and incompatibilities,
particularly in connection with political activities and government
functions.

46. The redefinition of the conditions of judges’ liability has also attracted
strong criticism. The Romanian State is responsible for the compensation of
a person who has suffered damage in case a judge or prosecutor commits
a “judicial error”. The State may then turn itself against the magistrate
concerned. With the proposed amendments, the Ministry of Public Finance
would now have the obligation to recover from the judge or prosecutor
concerned the amounts paid. The draft law provides that any compulsory
insurance scheme cannot delay, diminish or eliminate liability for a “judicial
error” caused by acting in “bad faith” or with “serious negligence”. In the
GET's views, this could also negatively impact on the effectiveness of anti-
corruption efforts because of their excessively intimidating effect on judges
and prosecutors. Certain aspects of these intended amendments have
been found unconstitutional and they will thus need to be removed or
reviewed.

47. In the light of the above, GRECO recommends that the various
amendments affecting the rights and obligations and the liability of
judges and prosecutors for judicial errors be reviewed so as to ensure
sufficient clarity and predictability of the rules concerned, and to
avoid that they become a threat to the independence of the judiciary.

Developments concerning the National Anti-Corruption Directorate

48. Over the last few years, in spite of its widely recognized effectiveness
in tackling corruption, the DNA has been a subject of repeated political
criticism, often in the form of attacks and inappropriate comments by
political leaders and persons actually prosecuted by the DNA itself,
prompting it to seek, at times, the intervention and protection of the CSM.
Some of these attacks were even of a personal nature against DNA’s chief
prosecutor. A public controversy has been ongoing, reaching
unprecedented proportions in recent months, especially after DNA
investigated the case of the above-mentioned controversial “Governance
Emergency Ordinance 13” (the Constitutional Court eventually considered
that this fell outside DNA’s the jurisdiction33).
33
https://www.romania-insider.com/constitutional-court-finds-conflict-romanias-government-dna/
49. At the request of the Minister of Justice, the functioning of DNA and/or
the conduct of its head were audited in the Summer 2017 by the Judicial
Inspectorate. The latter has presented a report on 6 October 2017 stating
that the Head of DNA has built prestige for the DNA and has the necessary
qualities to run the directorate, with efficient results in 2016 and in the first
semester of 2017. It found some irregularities in the management and
recommended that disciplinary investigations be conducted in respect of the
Head but no proposal was put forward to replace her 34. On 12 January
201835, the Inspectorate submitted a proposal for disciplinary proceedings
against the Head of the DNA to the CSM’s section for prosecutors, in
connection with inappropriate behaviour, but the results are not available as
yet. To date, no final conclusions have been reached in the
abovementioned proceedings.

50. However, on the second day of the GET’s visit, the Minister of Justice
gave a long press conference in which he presented a report containing 20
grounds for the dismissal of DNA’s Head36. According to article 51 of law
n°303/2004, there are three grounds for such a dismissal, one of which is
the general management in relation to effective work, the general behaviour
and communication, responsibilities and managerial skills. So far, the
official assessments of DNA37 have basically praised the work of the
institution and the dismissal process has prompted criticism including for
reasons of partiality38, as well as public statements from a majority of DNA
prosecutors and the Prosecutor General 39. After the Head of DNA was
heard, the CSM issued on 27 February a negative (non-binding) opinion on
34
http://www.romaniajournal.ro/dna-chief-kovesi-heard-by-csm-on-judicial-inspection-report-says-the-
team-had-divergent-opinions/
35
https://www.romania-insider.com/romania-laura-codruta-kovesi-misconduct/
36
http://www.romaniajournal.ro/update-2-justice-minister-announces-start-procedures-dismiss-dna-chief-
kovesi/
37
See especially the EU’s CVM reports at
https://ec.europa.eu/info/strategy/justice-and-fundamental-rights/effective-justice/rule-law/assistance-
bulgaria-and-romania-under-cvm/reports-progress-bulgaria-and-romania_en and the last general activity
report of the Romanian prosecution services
http://www.mpublic.ro/sites/default/files/PDF/raport_activitate_2017.pdf
38
https://uk.reuters.com/article/uk-romania-government-protests/thousands-demonstrate-to-support-
romanias-anti-corruption-prosecutor-idUKKCN1G90W9
http://www.business-review.eu/news/president-iohanniss-reaction-to-the-latest-scandal-in-the-justice-
system-158151 ;
https://www.hotnews.ro/stiri-opinii-22302745-decaparea-justitiei-ministrul-infractorilor.htm
https://www.hotnews.ro/stiri-esential-22304307-comisia-europeana-reactie-cererea-revocare-sefei-dna-
urmarim-indeaproape-ingrjorare-daca-presiunea-asupra-dna-afecta-lupta-anticoruptie-din-romana-comisia-
putea-reeavalua-concluzia-din-raportul-mcv.htm
the Minister’s request40 and the final decision will be taken by the President
of Romania (in accordance with article 54 para. 4 of the above law) who
has so far repeatedly supported DNA and its Head.

51. The GET recalls that in the Fourth Evaluation Round Report of
December 2015, GRECO had pointed to the need to reduce the political
influence and the power of the executive branch of power in the
appointment and dismissal of senior prosecutors such as the head of the
DNA. Their field of responsibilities exposes them to risks of undue influence
and anomalies have sometimes been observed in practice as regards the
termination of functions. So far, this recommendation has not been
implemented. As noted in the Compliance Report of December 2017, the
CSM had prepared and submitted some proposals during the first half of
2017 to the Minister of Justice, regarding the increased role of the CSM in
the appointment process (but not in respect of dismissals) but these were
not endorsed. GRECO had also noted that the subsequent draft
amendments introduced in Parliament on 31 October 2017 for amending
and supplementing Law no. 303/2004 on the status of judges and
prosecutors, maintain the current status quo with regard to the role of the
executive in the appointment of senior prosecutors.

52. GRECO reiterates its recommendation that the procedure for the
appointment and revocation for the most senior prosecutorial
functions other than the Prosecutor General, under article 54 of Law
303/2004, include a process that is both transparent and based on
objective criteria, and that the Supreme Council of Magistracy is given
a stronger role in this procedure.

IV. CONCLUSION

53. The issues raised above regarding the judicial reform must be seen in
the wider context of the justice system reform in Romania, which have
raised serious concerns from a number of national and international
institutions: several additional problematic developments (regarding the

39
https://www.digi24.ro/stiri/actualitate/justitie/augustin-lazar-nu-exista-nici-un-fel-de-motiv-intemeiat-
de-revocare-a-laurei-codruta-kovesi-882806
http://www.romaniajournal.ro/135-out-of-the-183-dna-prosecutors-send-joint-message-to-support-kovesi/
40
http://www.romaniajournal.ro/update-csm-issues-negative-opinion-on-justice-ministers-call-to-dismiss-
dnas-kovesi/; the Minister was reportedly the only one of the 7 members to support her dismissal.
criminal legislation) have, indeed, materialised after GRECO’s last plenary
meeting, during the process of adoption of the justice laws.

54. GRECO notes that the amendments to Law no. 303/2004 on the status
of judges and prosecutors, Law no. 304/2004 on the judicial organisation
and Law no. 317/2004 on the Superior Council of Magistracy, adopted in
December 2017, following their debate in Parliament, have not retained
some of the particularly controversial proposals presented by the Minister of
Justice in August 2017. The Parliament needs at present to review the
drafts in the light of a series of recent Constitutional Court decisions. Then,
the President of the Republic will examine the drafts for possible
promulgation. He also retains the possibility to submit these for further
constitutional review.

55. The on-site visit carried out by a GRECO delegation on 21 and 22

February 2018 shows that there are still a number of concerns regarding
the potential impact of the changes. It is regrettable that, despite the wide
scope of these reforms, and especially their possible structural impact on
the courts and prosecution services (due to the combined effects of new
recruitment/training and retirement arrangements), no proper impact
assessments have been done. Instead, the legislative process was
conducted according to a process which has itself been questioned, and at
a rhythm often described as particularly hasty, which did not allow to
discuss many aspects of the reforms. Calls have been made on several
occasions for Romania to request an opinion from the Venice Commission.
GRECO considers that seeking such an opinion would be timely. The above
also confirms the importance for Romania to comply with the
recommendations contained in GRECO’s Fourth Round Evaluation Report.
Issues concerning the legislative process, in particular the excessive use of
accelerated / urgent procedures and the lack of transparency had, notably,
been pointed out.

56. GRECO has also taken note of the latest developments concerning the
highly mediatised dismissal process of the Head of DNA, initiated on 22
February. A recommendation had been issued in the Fourth Evaluation
Round Report precisely to eliminate a risk of undue influence being exerted
in relation to appointments and dismissal procedures by the Executive
branch of power.
57. In the light of the above, GRECO reiterates the following two
recommendations addressed to Romania in the Fourth Evaluation Round
report, which have not been implemented to date:

 that the transparency of the legislative process be improved

(i) by further developing the rules on public debates,
consultations and hearings, including criteria for a limited
number of circumstances where in camera meetings can be
held, and ensuring their implementation in practice; ii) by
assessing the practice followed and accordingly revising the
rules to ensure that draft legislation, amendments to such
drafts and the agendas and outcome of committee sittings
are disclosed in a timely manner, and that adequate
timeframes are in place for submitting amendments and iii) by
taking appropriate measures so that the urgent procedure is
applied as an exception in a limited number of circumstances
(paragraph 27 of the present report);

 that the procedure for the appointment and revocation for the
most senior prosecutorial functions other than the
Prosecutor General, under article 54 of Law 303/2004, include
a process that is both transparent and based on objective
criteria, and that the Supreme Council of Magistracy is given
a stronger role in this procedure (paragraph 52 of the present
report).

58. In addition, in the light of the findings of the present report concerning
the justice reforms specifically, GRECO addresses to Romania the following
recommendations:

i. that i) the impact of the changes on the future staff structure

of the courts and prosecution services be properly assessed
so that the necessary transitional measures be taken and ii)
the implementing rules to be adopted by the CSM for the
future decisions on appointments of judges and prosecutors
to a higher position provide for adequate, objective and clear
criteria taking into account the actual merit and qualifications
(paragraph 32);
 ii. that the creation of the new special prosecutor’s section for
the investigation of offences in the judiciary be abandoned
(paragraph 35);

iii. i) ensuring that the independence of the prosecution service

is – to the largest extent possible – guaranteed by law, and ii)
assessing the impact of the intended changes on the future
operational independence of prosecutors so that additional
safeguards be taken, as necessary, to guard against
interference (paragraph 40);

iv. avoiding the creation of new avenues for conflicts of interest

and incompatibilities, particularly in connection with political
activities and government functions (paragraph 45);

v. that the various amendments affecting the rights and

obligations and the liability of judges and prosecutors for
judicial errors be reviewed so as to ensure sufficient clarity
and predictability of the rules concerned, and to avoid that
they become a threat to the independence of the judiciary
(paragraph 47);

59. It should be emphasised that the recommendations issued in

paragraph 58 above are of a preliminary nature, and may be reviewed in
light of the information to be provided by the Romanian authorities in June
2018, and in December 2018 in the context of the 4 th Round Compliance
procedure (see paragraph 62 below).

60. GRECO is equally concerned by the objectives pursued by certain draft

amendments to the criminal law (substantive and procedural) and the
legislative process initiated in December in this respect, as these could
have a negative impact on the country's anti-corruption efforts. The
intended amendments to the Criminal Procedure Code discussed by the
special parliamentary joint committee in relation to the EU Directive on the
presumption of innocence, reportedly go beyond the purposes of the said
Directive. These proposed amendments are raising serious concerns both
domestically and among other countries for their potential negative impact
on mutual legal assistance and the capacity of the criminal justice system to
deal with serious forms of crime, including corruption-related offences. For
instance, it has been pointed out that the drafters intend to excessively
restrict the conditions for the application of covert investigative techniques
and the use of evidence gathered through them (for instance, the suspects
would have to be informed from the outset about such measures, they
would have the possibility to participate in the hearings of all witnesses and
their alleged victims, etc.). Moreover, as mentioned earlier, three draft laws
were registered by the Senate on 21 December 2017; these carry
amendments to the Criminal Code (CC) but also to the Criminal Procedure
Code (CPC). Leaving aside questions concerning the articulation and
possible overlapping with the on-going work of the special committee, these
amendments – if adopted – would clearly contradict some of Romania's
international commitments including in relation to the Council of Europe's
Criminal Law Convention on Corruption (see paragraph 12 and footnote
16). The GET also noted that another attempt is made at amending the
offence of abuse of office in a way which would decriminalise completely all
acts committed in relation to a damage of up to 200 000 euros (in a country
where the average monthly wages are in the range of 600 to 800 euros).
The GET recalls that the controversial emergency ordinance which was
passed overnight in January 2017 (and then repealed) was pursuing a
similar objective.

61. The parallel increase of the repressive arsenal to deal with acts
committed in the context of a judge's or prosecutor's work appears in stark
contrast when one refers to the legislative proposals aiming at
strengthening the offences which are specific to the judiciary e.g. inducing a
judicial body into error, “unjust repression”, “remanding, arrest or other
preventive measure applied to a person in the absence of concrete
evidence (see the third legislative proposal in footnote 16). For instance, a
new offence of “abuse of judicial powers” would be created with penalties of
up to seven years imprisonment. Not only does this convey the wrong
message about Romania's current priorities, but it could have an
excessively intimidating effect on the work of judges and prosecutors (see
also the underlying concerns for the above recommendations on the liability
of magistrates for judicial errors and on the new special prosecutor’s
section for the investigation of offences in the judiciary).

62. The compliance procedure in the 4th evaluation round is still on-going in
respect of Romania and GRECO recalls that following the Fourth Round
Compliance Report adopted in December 2017, which concluded that the
level of implementation of recommendations was “globally unsatisfactory”,
Romania was asked to submit additional information by 31 December 2018.
GRECO considers it important not to await that deadline to take stock of the
on-going changes. It therefore instructs its President to inform the
Romanian authorities about GRECO’s findings and it invites the Head of the
Romanian delegation to present at the next GRECO plenary meeting (18-
22 June 2018) a written update on the state of the proposed reforms
concerning the justice system (including institutional aspects and criminal
law/procedure).

63. GRECO also points out that Romania should refrain from passing
criminal law amendments which would contradict its international
commitments and undermine its domestic capacities in the area of the fight
against corruption. GRECO concludes that should the intended
amendments be adopted, it may have to review some of its conclusions
reached in previous evaluation rounds.

64. Finally, GRECO invites the authorities of Romania to authorise, at their

earliest convenience, the publication of this report, to translate it into the
national language and to make the translation publicly available.