THE ROMANIAN ANTICORRUPTION BILL

LAVINIA STAN

Studies in Post-Communism Occasional Paper no. 6 (2004)

Centre for Post-Communist Studies St. Francis Xavier University www.stfx.ca/pinstitutes/cpcs

Successive Romanian post-communist governments .” These programs contain an impressive list of have made halfhearted attempts to adopt the legislative objectives alongside measures to accelerate the framework needed to fight corruption, a serious affliction anticorruption campaign, whose fulfillment will provide key impacting that country’s chances for consolidating benchmarks for judging the commitment of the government democracy and gaining acceptance into the European Union. to stem out corruption. Their importance is boosted by the More than a decade after the collapse of communism, the fact that, for the first time, Romanian authorities seemingly legal anticorruption framework remains deficient both admitted that the political establishment may be more the because key pieces of legislation are missing and because source of than the solution to corruption, a phenomenon already adopted laws allow for numerous loopholes and endemic to a wide range of Romanian public institutions. lenient sentences or blatantly contradict each other. Before A number of reports have already established that 2000, no government approached corruption holistically or corruption thrives in that country and tends to be connected wished to clear out the ambiguities plaguing the disparate (directly or indirectly) with the political class. Romania has laws, governmental ordinances and ministerial orders dealing consistently ranked among the most corrupt East European with various facets of the phenomenon, although all post-communist countries in terms of the Corruption governments declared anticorruption an utmost priority. Perception Index (see Table 1). Almost daily, the local press With respect to unpopular measures such as state-owned reports cases of politicians of all ideological persuasions, age company privatization and restructuring Romanian cabinets and educational background engaging in nepotism, pull, chose to bypass reluctant legislatures and draft ordinances in cronyism, bribe taking and giving, misappropriation of order to move the process forward, but no such political will public funds and embezzlement, with journalists deploring was evident with regard to the fight against corruption. the many terms that the Romanian language reserves for Since the Social Democratic Party won the late 2000 describing corruption. Romanian and Western observers general elections and the Adrian Nastase cabinet was sworn alike have detailed not only the extent of corruption in that in, Romania has seen a flurry of anticorruption activity, country, but also the role of political corruption in stalling partly in response to repeated criticism from the European the dual political and economic transformation which post- Union and NATO, and partly as an attempt to win over some communist countries have embarked on.1 of the electors supportive of the main opposition party, the nationalist Greater Romania Party, which made anti- corruption the cornerstone of its electoral campaign. The 1 Among studies on , see Diagnostic Surveys of other formations currently represented in the Romanian Corruption in Romania (World Bank, 2001), Corruption and Anti- Parliament are the Liberals, the Democrats, the Democratic Corruption Policy in Romania (Open Society Institute, 2002), A. Mungiu-Pippidi, “Breaking Free at Last: Tales of Corruption from the Union of Magyars in Romania, and the Humanist Party (up Post-Communist Balkans,” East European Constitutional Review vol. 6, to September 2003 a junior partner to the ruling Social no. 4 (Fall 1997), and V. Stoica, “Romania’s Battle Against Corruption,” Democrats). As part of the anticorruption campaign, the Public Management Forum vol. 3, no. 2 (1997). The most important Justice Ministry drafted a “National Plan for Preventing studies analyzing high political corruption and its impact on East Corruption” and a “National Plan for Fighting against European democratization and economic transition are Anti-corruption in Transition: A Contribution to the Policy Debate (World Bank, 2000), S. Corruption (2001-2004),” while the government adopted a Ross-Ackerman, Corruption and Government: Causes, Consequences comprehensive strategy for “Combating Corruption in and Reform (Cambridge: Cambridge University Press, 1999), and L. 1 2 Table 1: Corruption Perception Index Rankings, East Europe As it will become apparent, while significant progress has been accomplished, there is yet much to be done in order to Country 2002 2001 2000 1999 1998 1997 bring political corruption to an acceptable level, and root out 81 84 the practice of using public funds for private interests. Bulgaria 45 37 52 63 66 Czech 52 37 42 39 37 27 Republic Conflict of Interest and Office Incompatibility Hungary 33 31 32 31 33 28 Poland 45 44 43 44 39 29 Conflict of interest and office incompatibility were Romania 77 69 68 63 61 37 legislated by the 1991 constitution and the law on public Slovakia 52 51 52 53 47 local administration (Law 215/2001), but provisions were Slovenia 27 34 28 25 unclear and prone to interpretation, and the procedure for Croatia 51 37 51 74 Blank cells indicate unavailable rankings. applying sanctions remained unspecified. The Law 215/2001 described and punished cases placing local and county elected officials in incompatibility. According to Articles 30 This article discusses recent efforts of the Romanian and 112, councilor positions were incompatible with those of authorities to tackle political corruption by presenting the prefect, deputy prefect, mayor, government and Parliament legislative framework governing conflict of interest, office member, employee of decentralized ministerial territorial incompatibility and asset disclosure affecting elected and offices, and administration board member or manager of non-elected public officials, detailing the political bargaining public utilities and companies set up by the council. Mayors preceding the setting up of the National Anticorruption were further banned from holding management positions in Prosecutor’s Office and during the first year of its activity, state-owned companies and public utilities, and other public analyzing the new anticorruption bill for which the offices and activities, except those of university professor or government assumed responsibility, examining the results of foundation member (Article 62). While providing the first initial attempts to implement the bill and force politicians to markers for office incompatibility, the law had several distance themselves from direct private interests which might shortcomings. ‘Incompatible’ councilors and mayors could affect their decisions, and pointing out the most important lose their mandate, but the dismissal procedure was unclear. drawbacks of the anticorruption strategy. None of these Elected officials were not banned from managing private themes were analyzed in the English-language literature, companies which were not under the council’s direct though they were the topic of many Romanian press reports. authority, but had won lucrative contracts from it. As the law The anticorruption measures presented here have pitted the was adopted during their mandate, local officials who government against both the opposition and some Social assumed office in 2000 were considered exempt from Democrat members unwilling to see their privilege of observing the law, which was to be implemented only after combining public office and private business compromised. the 2004 elections. Equally unclear were the constitutional provisions Holmes, The End of Communist Power: Anti-Corruption Campaigns and outlining the incompatibility of deputy and senator positions. Legitimation Crisis (Cambridge: Polity Press, 1993). According to Article 68 of the constitution, an individual 3 4 cannot be deputy and senator at the same time, and 2002), which banned local elected and non-elected public Parliament members cannot hold any “public function of officials from simultaneously holding mayor, deputy mayor, responsibility” except that of cabinet member. But the article local and county councilor positions, on the one hand, and failed to provide details on those public functions, as did positions of shareholder, manager and board member of other pieces of legislation subsequently adopted. All these public utilities and companies subordinated to the local legislative shortcomings meant that by late 2001 no local and administrative body which they represented, on the other central public official had admitted to incompatibility or had hand. Officials had to choose between positions by 17 chosen between the public office and the private business. February, otherwise they risked losing their public office by In early 2002, the Romanian Parliament decided on a order of the prefect. The ordinance also banned local set of anticorruption laws to be adopted before the Prague officials from using their position of influence for helping summit, scheduled later that year, when the country hoped to companies to obtain contracts from local governmental be accepted as a NATO member. The decision responded to bodies and their subordinated companies. Already drafted demands from international actors that take contracts were to be annulled. The ban applied not only to conflict of interest seriously and separate public from private the local officials in the mayor’s offices and local and county activities. But the processes of legislating conflict of interest councils, but also to their first- and second-degree relatives. at the local and central level differed sharply. Instead of Yet conflict of interest was established by written acting as a model for the entire country, Parliament and declarations given by officials themselves, and not as a result government members preferred to start the process of of verifications conducted by an independent agency. The cleansing the political class at the local level. Beside the temptation to offer false information was great, since obvious desire to buy time for themselves, the reasons sanctions were minimal. The deadline prompted the press to included the belief that conflict of interest in local public try to identify the elected and non-elected local officials in administration was more dangerous to the country’s political incompatibility either because of their personal, or their close stability and the new regime’s credibility given the sheer relatives’, involvement in private business. A flurry of press number of local public officials and their direct interaction reports unmasked the illegal dealings of many local officials, with the citizens. Equally important was the fact that the their spouses and children, but only in rare cases officials government could regulate conflict of interest for local chose to put an end to their incompatibility status. public officials through the adoption of ordinances, an option Two days after the deadline, the Ministry of Local unfeasible in the case of Parliament members, since it ran the Public Administration, overseeing the activity of local risk of being rejected by the legislators. While Parliament governmental and administrative bodies, announced that promised comprehensive reforms with respect to conflict of only 123 of the total 44,390 local and county councilors interest and asset disclosure by the dignitaries, in the end it declared themselves in position of incompatibility. Of these, delivered nothing. As a result, the government had to act as 24 gave up their councilor mandate, 88 renounced their the main legislator in this area by proposing legislation, involvement in private business, and eleven annulled the drafting ordinances and assuming responsibility for the contracts drafted with local governmental bodies. No anticorruption bill. ‘incompatible’ mayor or deputy mayor was found. The In January 2002, the cabinet adopted Governmental statistics was compiled by prefectures of all 40 Romanian Ordinance 5 (later approved by Parliament as Law 378/ counties on the basis of the declarations given by local 5 6 officials. While the ministry insisted that the report was Opposition to the ordinance mounted, coming from every complete and reflected reality, journalists immediately political party and even from within the ruling Social contested its accuracy, pointing out that far more than just Democrat ranks. Botosani county council vice-president and 0.3 percent of local officials had used their political office to Social Democrat leader Constantin Contac threatened to sue augment their personal income. Indeed, only in the the government “all the way up to the European Court of Constanta county the prefecture announced that of a total of Human Rights” if his ‘right’ to be simultaneously involved 1,082 as many as 246 local officials were in incompatibility, in politics and business was infringed. The press alleged that being shareholders in some 391 companies.2 Contac’s private firm obtained lucrative contracts from the A scandal broke up in the northeastern city of Iasi council in tenders organized by the local transportation state when an independent investigation revealed that many public agency led by none other than Contac’s son.4 The officials’ officials and civil servants were major shareholders or first and second degree relatives had yet to be verified. administrative board members of profitable private Most outspoken was the opposition Democratic companies. When asked why they did not include this Party, which announced plans to expel all its local information in their declarations, officials claimed that forms representatives who did not solve their incompatibility status asked only about involvement in companies doing business by the deadline, and launched a wide campaign to unmask with the local government, not general involvement in the and make public the names of all ‘incompatible’ Social private sector.3 While some officials gave false declarations, Democrats. Shortly after the deadline, the Democrats others denied their incompatibility and, to buy time, asked condemned the Social Democrat leadership’s reluctance to the ministry to evaluate their situation, rather than follow the spirit of the law and to withdraw support from its voluntarily giving up lucrative positions in the private sector. disobedient representatives disregarding the ordinance. To Still others pointed out that the ordinance failed to show the inaccuracy of the data provided by the Ministry of distinguish clearly between involvement in private Local Public Administration, the Democratic Party compiled companies and involvement in companies and utilities set up its own statistics of ‘incompatible’ Social Democrats, by local governmental bodies, and that in fact conflict of revealing that 589 Social Democrat local representatives (of interest referred only to the former, not to the latter. The which eight county leaders, nine deputy mayors, three reason was that councils had to be represented on these prefects, one deputy prefect, 130 county councilors and 387 company administrative boards, and none could do that local councilors) were also shareholders and administrative better than the councilors. Since such appointments were board members of companies and public utilities voted on by the councils, they claimed, the dismissal had to subordinated to local governmental bodies. The authors be decided by the councils, which did not follow suit. asked Premier Nastase to follow the example of the Democrat Party and penalize local officials whose 2 Cuget Liber (16 February 2002). Governmental documents are to be incompatibility remained unsolved “in order to end the found at www.guv.ro. temptation to direct public funds toward their own pocket or 3 The Iasi mayor threatened to sue the authors of false declarations, but that of their political colleagues.” The Democrats further before he could make good on his promise Liberal councilors distributed declared that within their ranks there was only one case of 25,000 postcards with the names of 22 ‘incompatible’ local councilors. Yet, councilors refused to make a choice. See (22 March 2002) and Adevarul (8 April 2002). 4 Monitorul (18 February 2002). 7 8 insubordination, and that the representative who refused to ten million Lei a month (around $300, twice the average choose between his mandate and private business had been salary in Romania), one-third of which was donated to the promptly expelled from the party.5 parties they represented, suggesting that party and personal Although the government and the Social Democrat interests often took precedence over the council’s.6 Party leadership lacked political will to apply the ordinance, Responding to the Social Democrats’ non-committal and only a fraction of local public officials were forced to to implement the ordinance and solve their own choose between their public and private positions, further incompatibility status, the Democrat Party announced that its concessions were granted. The first concession came only members will sue, as private citizens, the ‘incompatible’ days after the deadline, when the Senatorial Judicial Social Democrat public officials, but the proposal was not Committee approved, and the Senate accepted, amendments followed through. The party also called unsuccessfully for to the ordinance that allowed elected officials to remain the Law 215/2001 on local public administration to be shareholders and administrative board members but not implemented immediately. On 29 May several amendments company leaders. Companies where local elected and non- to the draft law on local elected officials proposed by the elected officials, public utility employees and their first and Democratic Party were rejected by the Social Democrat and second degree relatives were managers and major the Democratic Union majority on grounds that the shareholders continued to be banned from having contractual constitutionally-granted ‘right to hold property’ was key to a relations with local governmental bodies and public utilities functioning market economy, and public officials could not subordinated to them. Elected officials had to make their be denied such a right. As a result, councilors could still choice within five days to avoid losing their mandate. represent the local and county councils on the administrative Another concession came in the form of an order signed by boards of state-owned companies and public utilities, a Deputy Minister of Local Public Administration Ionel decision defended by the parliamentary majority as Flesariu and sent to all prefects and county council comparable to the standard practice in other European presidents, which stated that the ordinance did not apply to countries. By then, the governing Social Democrat Party had companies subordinated to the local government. When increasingly given in to demands to soften the ban on denouncing the order in Parliament, Democrat deputy Ioan simultaneously holding public and private office, and Oltean mentioned 80 companies subordinated to mayoralties rejected repeated requests to make the law more restrictive. and another 60 subordinated to county councils, meaning During the summer the Social Democrat Party that the order exempted some 300 officials in total. The Standing Delegation, headed by party president Adrian ministry responded that in those cases “there was no conflict Nastase, set up eight working groups for analyzing of interest, since councilors had no direct private interest in allegations of corruption against party members. Formed of being nominated,” and the councils needed direct control three to four national party leaders, the groups examined over the companies. But Democrat senator Iuliu Pacurariu press reports and interviewed local ‘barons’ about their pointed that such council representatives received as much as involvement in private businesses and acts of corruption before handing in the final verdict. The first round of

discussions involved the Vrancea and council 5 (19 February 2002). After parties withdraw their support, representatives are not obliged to give up the mandate, becoming instead independent deputy mayors. 6 (13 March 2002). 9 10 presidents Marian Oprisan and Nicolae Mischie, Ilfov involving these ‘barons’. Frustrated with the mass-media’s prefect Teodor Filipescu, and former Iasi prefect Corneliu ‘obsession’ with the subject of corruption, Nastase declared Rusu Banu, all of whom were declared untainted by that discussions with local leaders did not aim to “offer corruption. The day before being summoned to Bucharest, journalists any Social Democrat blood” as “their tool was not Oprisan renounced all party leadership positions for a six- the scaffold.”9 Yet according to journalists corrupt Social month period, and said that “during this time, I want all Democrat ‘barons’ existed but were untouchable because of unfounded accusations against me to be verified because their important financial donations to the party. The press they affect the party’s good name.” Oprisan did not give up identified 69 major party sponsors who, it claimed, received the council presidency, and the council’s Social Democrat either top state portfolios or state-owned companies slated majority refused to depose him. The press repeatedly for privatization in exchange for their campaign contribution. accused Oprisan of involvement in illegal dealings, of using Social Democrat leaders claimed that the so-called “Club his office to intimidate local journalists implicating him in 75,” including party members and private businessmen who corruption scandals and of pressuring peasants to give up gave the party 75 million Lei ($3,500) each, was “a legal their land for his benefit, while the courts charged him with non-profit organization carrying out Social Democrat mismanaging council funds. Filipescu was also exonerated humanitarian projects,” without being able to identify those of any wrongdoing, although the press insisted that a taped projects explicitly.10 conversation suggested that he demanded hefty bribes for Trying to define the term ‘baron’, Social Democrat rigging service tenders.7 deputy Eugen Nicolicea contended that “the ‘baron’ is a Ending in late February 2003, interviews allowed prosperous businessman who eventually is corrupt.”11 Nastase to browse reports prepared by the working groups, Journalist Ovidiu Nahoi suggested that discuss strategies for upcoming elections and membership fee collection, and listen to the local leaders’ pledges that the “a ‘baron’ represents local ‘power’. The public corruption scandals implicating them had already been function is inconsequential, since a ‘baron’ can be solved. Local leaders complained that legislative provisions prefect, county council president, Parliament on conflict of interest threatened their revenues, already member or elected local official. What really matters is the ‘respect’ he gets from local business- meager by Western standards, and disregarded the fact that “mandates are short-term, [while] our businesses are long- term.” While stressing their commitment for rooting 9 Curentul (21 February 2003). 10 corruption out of the Romanian political life and insisting According to journalists, Gheorghe Bosanceanu acquired the Constanta that “no individual with position of responsibility should be Shipbuilding Yard through an offshore company, Aurel Tarau became Bihor prefect and his son was allowed to exit Romania during penal given the possibility to use the public office for obtaining investigations, Aristide Roibu was appointed head of the Senatorial 8 personal advantages,” top party leaders concluded that there Judicial Committee while standing accused by a Swiss businessman of were no Social Democrat ‘local barons’, and implicitly embezzlement, Corneliu Iacobov stalled investigations into his activity as dismissed press allegations exposing corruption scandals Private Ownership Fund head, Sergiu Sachelariu was appointed Transportation Deputy Minister and Gheorghe Dumitrescu became Romania’s general consul to New York. See Evenimentul Zilei (28 7 Evenimentul Zilei (22 August 2002). August 2002), and Monitorul (3 September 2002). 8 Monitorul (12 February 2003). 11 Romania Libera (26 February 2003). 11 12 men and administrators. The more ‘respect’ offices had failed. True, some officials tried to solve their translates into fear, the better...A real ‘local baron’ incompatibility by giving up their political mandate or is a businessman and a politician, or at least his renouncing their private company management and board close relatives are involved in business. It is a position. But ordinary , journalists and politicians matter of debate whether his business relations alike admitted that these voluntary renunciations represented helped him enter politics or vice-versa, but [it is the exception, not the rule, and that ultimately the ordinance certain that his] business is conducted with the state ...We find ‘barons’ in areas where the state is a was unable to delineate the local public administration from major player (gas and oil, public works, its multifaceted personal economic interests. The primary agriculture, local services) and in areas with a high culprit for this state of affairs was the legislative framework, turnout (retail, alcohol, lumber). State control over which did not detail the method of applying sanctions for the economy, administrative centralization and providing false declarations and for failing to choose delayed reforms are the basis of his power. between the public office and the private business by the Carefully maintained connections and [clientelistic] official deadline. The ordinance also allowed officials to exit relations, state tenders, ‘respect’ imposed from the economic sector only formally, often retaining above and support from voters with precarious substantial control over companies and public utilities political culture give ‘local barons’ the sweet through spouses, children, other close relatives and trusted feeling of force and permanence.”12 friends. If the ordinance aimed to ensure that specific

companies were not favored by councilors during tender and In April 2003 the Sibiu prefect dismissed the mayor, contract adjudication, it failed to reach its goal. deputy mayor and four councilors of Talmaciu for their While top party leaders were busy verifying the incompatibility – the first such case where Ordinance 5/2002 background of their colleagues holding positions in the local was applied. All six represented the opposition, which administration, they remained silent about their personal argued that the prefect chose to ignore the incompatibility of involvement in the private sector. Since the official two other Social Democrat councilors. The prefects are the information seemed inaccurate, it was left to the press to central government’s representatives in the territory and uncover the business dealings of Parliament and cabinet represent the local administration, which parallels the local members and to venture into deciding which ones were in government composed of county councils. Whereas local positions of incompatibility,. Usually the Romanian government officials are elected directly by the population Parliament has been extremely divided between the on party lists, prefects are appointed by the ruling party. government and the opposition on almost every single issue, Following much public outcry, the Social Democrats ceased but when it came to regulating the status of legislators and such dismissals, but ignored requests to apply the ordinance forcing them out of lucrative business positions the house to government and opposition members equally. showed remarkable consensus. This was not the first time By the spring of 2003, more than a year after the legislators ignored political cleavages, as over the years they ordinance was adopted, it was evident that efforts to constantly supported proposals for increased honoraria, convince local officials to separate their public and private benefits and perks for themselves. In November 2001 Democrat Union deputy Ervin 12 Evenimentul Zilei (26 February 2003). Szekely introduced in Parliament a legislative proposal 13 14 declaring the office of deputy, senator and cabinet member because the law came thirteen years late and only at the incompatible with the position of manager, shareholder and prompting of foreign governments, huge sums of money had administrative board member of public utilities, state-owned already been transferred from the public budget to private enterprises and public institutions. According to the pockets. Questioning the cabinet’s willingness to address the proposal, Parliament and cabinet members had to disclose issue in all its implications, Adevarul pointed out that more their incompatibility in writing and renounce either their than two years after assuming the mandate the Government’s political mandate or their business position within 15 days. Secretary General Serban Mihailescu continued to be a As Parliament delayed debating the proposal for months, in company shareholder and Deputy Minister of Tourism Alin mid-February 2002 the Romania Libera daily published a list Burcea owned a tourism company, in spite of numerous of deputies and senators involved in private companies as governmental reports claiming that no cabinet member was significant shareholders or managers. According to the daily, close to private companies. The daily also criticized the fact an analysis of the Commerce Registry data showed that the that the draft law was not applicable to leaders of total number of companies Parliament members were part of governmental agencies and national state-owned companies, was larger than the total number of Parliament members (469 many of whom were running businesses on the side.14 compared to 452), suggesting that some deputies and Joining the effort, the Evenimentul Zilei daily senators were involved in more than one firm. Parliament identified 13 of the 26 cabinet ministers as being involved in members managed 293 companies. In terms of party private companies, including the ministers of European affiliation, the Social Democrats were the most numerous Integration, Defense, Interior, Labor, Industry, Agriculture, (being shareholders in 198 companies and managing 154), Tourism, Sport and Youth Affairs, Public Information, and followed by the Greater Romania Party representatives the Government’s Secretary General Serban Mihailescu, (shareholders in 117 and managers of 59), the Liberals nicknamed “Miki Bakshish.” Allegedly first among ministers (shareholders in 49 and managers of 17), the Democrats was Environment Minister Petru Lificiu, shareholder in eight (shareholders in 44), and the Democratic Union companies, and administrator of three of them.15 Another representatives (shareholders in 30 and managers of 16). The daily, Gardianul, lengthened the list by adding the names of most active were Social Democrat deputies Viorel other ministers and deputy ministers, their spouses and sons. Gheorghiu and Iosif Armas, and Democratic Union senator The daily continued its description of the “Government- Attila Verestoy.13 Firm” by stating that Since Szekely’s proposal did not enjoy parliamentary support, in late May the Nastase cabinet approved the draft twelve cabinet members have private businesses, law on conflict of interest of state dignitaries, whose big or small, alone or together with their spouses stipulations applied to the Prime Minister, ministers, deputy and children. Once becoming ministers, some of ministers, prefects and deputy prefects and their relatives, up them transferred the companies to their spouses to obey the law, at least formally. Others nonchalantly to the fourth-degree. According to the Adevarul daily, remained company leaders, dividing their time between the affairs of the state and those of their 13 Gheorghiu was shareholder in 16 companies, Armas was shareholder in ten and manager of nine, while Verestoy was shareholder in eleven 14 Adevarul (23 May 2002). and manager of six. 15 Evenimentul Zilei (30 May 2002). 15 16 own pocket. True, some cabinet members were arguments called for additional legal stipulations to be once private businessmen, building their companies formulated, they could hardly justify blocking the proposed over the years with more or less support coming law. By late October, the draft law on conflict of interest had from local politicians [but] most of them were already spent four months in Parliament without even being already Parliament or government members when discussed by the specialized committees. Another draft these private firms were opened and consolidated introduced by the Liberal Party in the Chamber of Deputies and used their connections to the political class and the bureaucracy to their own advantage.16 got a cold shoulder from the house, bent on hampering all attempts to deprive legislators of additional funds. The government vehemently denied such accusations, while Despite opposition from legislators, the government ministers claimed that their private businesses were a thing continued to press on the issue of conflict of interest. In early of the past. But from a legal viewpoint withdrawal from a November the Prime Minister’s Control Office revealed the company must be recorded in the Commerce Registry and results of an investigation into the status of ministerial probed with documents, not just oral statements, conditions advisers. According to the report, 49 percent of investigated most ministers did not fulfill. As a result, the Registry still ministerial advisers were also private firm managers or listed them as associates, managers and significant auditors. While no piece of legislation defined this situation shareholders in private companies. Continuing the series of as conflict of interest or office incompatibility, Prime revelations, the press detailed the activity of public officials’ Minister Nastase asked advisers voluntarily to choose spouses and close relatives, alleging that “the practice of between their public and private positions. But in his already having relatives involved in business had become a Social characteristic style of one step forward, two steps back, only Democrat party policy.” The wives of several prefects, days later Nastase conceded that advisers could represent deputy prefects and county council presidents allegedly their ministry as members of the administration boards of managed companies directly involved with the governmental subordinated public utilities because in this situation “they 17 hold positions in order to exert an efficient control on behalf bodies headed by their husbands. 18 In July 2002 the government’s draft law was of the ministry.” Thus, only advisers involved with private introduced in Parliament, where it faced stiff criticism. The companies had to make a choice. opposition charged that the draft, too short to have any real By late 2002, international observers were substance, only rehashed stipulations already included in the increasingly critical of corruption in Romania. An Open law on the functioning of the government and the law on Society Institute report released the day before the European local public administration. It also pointed out that the draft Union meeting in Copenhagen ranked Romania as the most provisions unrealistically asked state dignitaries to self- corrupt among countries seeking accession to the Union, report situations of conflict of interest as soon as they arose, deplored the lack of a functional law regulating conflict of and did not apply to civil servants, Parliament members and interest, and noted that “no minister or high official was ever magistrates, being restricted only to ministers and deputy punished for ignoring the rules of incompatibility. The press ministers, prefects and deputy prefects. While these reported in detail the auxiliary activities of the ministers, including the almost universal practice of deputy ministers 16 Gardianul (30 May 2002). 17 Evenimentul Zilei (2 September 2002). 18 Evenimentul Zilei (9 November 2002). 17 18 and other high-ranking officials to sit on administrative together with his or her immediate family – owned buildings, boards of state-owned companies.” The report added that company shares, art and coin collections, foreign bank “anticorruption strategies are often formal, not supported by accounts, cars, tractors, yachts, jewels, and gold, silver and political parties, and targeting perpetrators of lesser platinum objects. Since the law was passed only in late 1996, importance who present no threat to society, while the no asset declaration forms were filled in by the state corrupt individuals from Parliament and government remain dignitaries who held mandates during the 1990-1992 and sheltered,” and that “the parliamentary immunity, combined 1992-1996 legislatures. with the lack of legislation on conflict of interest, transforms The law was an improper tool for preventing Parliament into a refuge for potential perpetrators who pay dignitaries from abusing their positions of power and political parties to be included on electoral party lists.” In responsibility. First, the definition of state dignitary excluded response, the Justice Minister denounced the report as an members of the state bureaucracy, local officials, and “outdated list of serious accusations not reflecting reality.”19 managers of state-owned monopolies and banks, appointed by the ruling party from among its loyal sympathizers or members. Second, declarations remained confidential, with Asset Disclosure by Public Officials more sanctions being applied to those who dared to disclose the information than to those who refused to submit such Asset disclosure was regulated by the Law 115 of 28 declarations. While the law stipulated that investigations October 1996, which obliged elected and non-elected state were ‘automatically’ launched following refusal to disclose dignitaries to submit declarations detailing the assets owned information, the details of the launching procedure were left at the beginning and at the end of their mandates. According out, and nobody was in charge of gathering the declarations to Article 3, dignitaries also had the obligation to submit and notifying the specialized state organs in case of non- such declarations within 15 days of the adoption of the law. submittal. Third, no independent agency verified the State dignitaries included the Romanian President, deputies, accuracy of the declarations, and no specific sanctions for senators, and cabinet members. Strictly confidential, asset false reporting were included. Asset disclosure remained a declarations were to be kept under lock by the head of the purely formal exercise unable to address the real issues of institution where the signatory worked. Speakers of the transparency and accountability. Unsurprisingly, few Chamber of Deputies and the Senate, and the Prime Minister, dignitaries took it seriously, and many refused to detail their had to submit their declarations to the Romanian President assets. By 2001 at least five rounds of declaration (Article 4). Failure to submit the declaration automatically submission had to have occurred. First were the declarations led to investigations (Article 6) carried out by a special that had to be submitted within 15 days from the law’s commission formed of two Supreme Court of Justice judges adoption. Then came the declarations marking the end of the and a prosecutor with the General Prosecutor’s Office 1992-1996 mandates and the beginning of the 1996-2000 (Article 4). Declarations detailed whether the dignitary – mandates, followed by those submitted at the end of the 1996-2000 mandate and the beginning of the 2000-2004

term. As we will see, even dignitaries who voted for the law 19 Quentin Reed, Corruption and Anti-corruption Policy in the Ten Candidate States of Central and Eastern Europe (CEE) (Open Society chose to ignore their obligations. Institute, 6 November 2002). 19 20 By early 2002 NATO asked Romanian authorities to classified information, with access to them being granted rethink seriously the need to provide transparency to asset only to specialized authorities. Paying lip service to the disclosure, and align the country to European practice in this principle of transparency, the amendments allowed leaders respect. But the lack of a unique Western model allowed of mass-media outlets to study the declarations, but such Bucharest to emulate France, the least open Western country. requests were granted only for unspecified “well-grounded” The French legislation asks local and national officials and reasons. managers of mixed, publicly and privately owned The proposal was introduced in the Senate, being first companies, to submit declarations within two months of sent to the Human Rights Committee. During committee nomination or dismissal, but declarations remain strictly debates, the opposition attacked the amendments by pointing confidential. German Bundestag members must declare out that part III was virtually inaccessible monthly assets over 15,000 Euros resulted from parallel to ordinary citizens. Liberal senator Vlad Popa and Democrat activities in front of the Speaker, not to the public. Much senator asked for asset value to be specified, stringent regulations are in force in the United Kingdom and since “we should be able to ascertain if an individual became the United States, where the list of dignitaries is much larger richer during his mandate.” They also called for the list of and declarations are open to the public. Within 30 days after disclosed assets to include art objects, coins and stamp accepting a position, the United States federal officials must collections, a proposal rejected by the Social Democrat submit a complex declaration detailing the source, type and senator Aristide Roibu on grounds that “we do not want value of all assets exceeding $200, debts incurred to persons declarations to take up 20 to 30 pages and look like novels.” other than first-degree relatives, gifts over $100 received, After much debate, the committee restricted the asset list to positions in for- and non-profit organizations, education and land, residential buildings, commercial property, cars, trade unions, and donations to charitable organizations. A yachts, and foreign currency bank deposits over 10,000 House of Commons resolution bans British Parliament Euros, and rejected the need for publicly disclosing such members from being remunerated advocates of interest information. Committee chair, Democrat Union senator groups, and asks them to submit detailed declarations of Gyorgy Frunda, argued that the publication exposed financial interests at the beginning of the mandate. dignitaries to robberies, represented a “temptation for Declarations are updated if needed, and entered into the everybody else,” and ultimately was unnecessary, since most Registry of Members’ Interests open to the public. assets – houses, land and cars – were highly visible. On In February 2002, the Nastase cabinet submitted to behalf of the committee, Frunda suggested that amendments Parliament amendments to the Law 115/1996 calling could not apply to current Parliament members, since “rules Parliament and government members, magistrates, prefects cannot change during the mandate” and “deputies and and leaders of public institutions to submit declarations senators cannot be presented with obligations they did not detailing the assets they owned together with their spouses assume” at the beginning of their office. For him, there were and minor children, and update them as soon as new assets other unnamed tools that could help authorities and the were acquired. The proposal provided for the publication in public to estimate whether the assets were acquired legally.20 Monitorul Oficial part III of the names of dignitaries refusing to submit declarations, but not the publication of the entire asset declaration. Instead, declarations were to become 20 Romania Libera (20 September 2002). 21 22 Shortly afterwards, the amendments received a cold disclosure in its new anticorruption bill. This statement shoulder from the Senatorial Judicial Committee, not provoked the ire of the legislators, who insisted that such an surprisingly, given the fact that they introduced restrictions important bill had to be “democratically” adopted by affecting legislators, many of whom were successful legislators, the representatives of the Romanian people, businessmen and among the richest individuals in Romania. rather than being “autocratically” imposed from above by the Following pressure from the government, the committee’s government. But by mid-February 2003 both the Social Democrat and Democratic Union majority worked out parliamentary majority and the opposition had employed a scheme for not directly turning down the amendments. every conceivable trick to postpone and even block asset Instead of continuing debates on the proposal, senators asked disclosure. Instead of seeing asset disclosure as an the Ministry of External Affairs to draft a comprehensive opportunity to protect officials from unjustified accusations, report comparing European countries in terms of asset the Romanian political class saw it as a threat to its very disclosure. After a month, the Ministry sent not a concise credibility. The government’s frustration with a deadlocked report, but seven volumes of documents in Portuguese, process grew stronger under the pressure of international English, French and German, which the Senate was in no agencies and foreign governments. It is misleading, however, position to evaluate promptly. In December the committee to suggest that the cabinet offered constant support to asset allowed state officials not to report their art collections, and disclosure proposals despite Parliament’s stubborn kept declarations out of ordinary Romanians’ reach. It also resistance, or that the issue pitted a supportive parliamentary rejected the proposal that all post-communist officials be majority against an unsupporting opposition. Instead, the required to submit declarations, instead asking only lines of division cut across the main ruling party, with some dignitaries in office at the time of the law’s adopted to detail Social Democrats being more resistant than others, as well as their assets. The committee was unable to clarify the across the opposition ranks, with some parties and factions procedure for launching investigations, but specified that the showing greater support for the proposal. latter could be started by the Justice Minister or the General In March 2002 the government announced that Prosecutor. Expressing dissatisfaction, Democratic Party twelve deputies of the 1996-2000 legislature did not submit deputy said that “Parliament adopts only those asset declarations at the end of their mandate. Two-thirds of laws which satisfy the personal interests of certain public them represented the former ruling coalition of Christian officials, including the Prime Minister,” alluding to Adrian Democrats, Democrats and Liberals, while only two Social Nastase’s valuable art collection which the committee kept Democrats were found on the list. When pressed to explain protected from public eyes. Boc also complained that nobody their oversight, the twelve deputies invoked all sorts of was made responsible for collecting the declarations in view arguments, some more unconvincing than others. One of the of publication. For Boc, the adopted variant was a strange most vehement critiques of the Nastase cabinet and a self- combination of transparent and untransparent provisions avowed supporter of the anticorruption campaign, Bucharest which rendered the bill inapplicable.21 general mayor and Democrat Party leader Traian Basescu By the time the Senate could start debating the declared that he simply forgot to submit the declaration, proposal, the government announced plans to include asset admitting that asset disclosure was not among his top priorities. To deflect criticism, other deputies complained 21 Curentul (19 December 2002). that nobody reminded them of their obligation, although the 23 24 law they themselves adopted did not provide for such an notary, a move that allowed legal action to be taken against obligation. Following Law 115/1996, declarations had to be false information. It also asked for publishing the submitted to the Chamber of Deputies leadership, but the declarations in Monitorul Oficial and simultaneously on the latter absolved itself of responsibility and announced that the internet in order for the disclosure process “to pass the test of judiciary alone could start investigations at the request of significance in the eyes of the public,” and recognize that “a either the Justice Minister or the General Prosecutor, a [state dignitary] cannot be his own judge.” The Democrats procedure which was less ‘automatic’ than the law further proposed a nine-member independent integrity suggested. committee to analyze complaints from citizens, facilitate the In response, former adviser to President Emil electronic dissemination of declarations and assess the Constantinescu Mugur Ciuvica denounced Nastase for accuracy of the information, and called for false reporting to submitting no declaration in late 1996 to mark the end of his be severely punished and for the list of assets also to include 1992-1996 deputy mandate or the one that had to be drafted expenses incurred during travel abroad, consulting fees within 15 days of the law’s adoption. Since Nastase’s received for various services, remunerated positions and declarations had to reach the Constantinescu presidency, economic activities, gifts over 100,000 Lei (around $3), and Ciuvica claimed that his allegations were based on first hand the interests of close relatives and friends. A Registry of experience as a presidential adviser until late 2000. Minister Interests should record ten categories of financial and non- for the Relation with Parliament Acsinte Gaspar defended financial interests that might affect the behavior of local but Nastase for submitting declarations “at the beginning of all not central officials during their mandate.23 Declarations his mandates,” a statement he soon contradicted by saying were to be made available to the public in virtue of the law that in fact Nastase submitted them only in late 2000, since on access to public information. None of these suggestions before that there was no legal requirement to do so.22 On his were supported by the Social Democrat and Democratic part, Nastase claimed that his declarations existed, but that Union parliamentary majority. they had been directed to the General Prosecutor’s Office. When the Prime Minister refused to detail the reasons which prompted him to disregard the law and send his declarations The National Anticorruption Prosecutor’s Office to the Prosecutor’s Office instead of the presidency, Ciuvica threatened to petition the Supreme Court of Justice if As early as 1997 the European Union recommended declarations were not found. Indeed, on 30 April 2002 that Romania emulate Italy and Spain and set up a central Ciuvica asked the Court to start verifications of Nastase’s anticorruption structure, but five years were lost with assets, but his request was left unanswered. halfhearted measures and failed experiments. It was only in As in the case of conflict of interest, the Democratic late 2001 that Romania asked Spain for advice in Party was the most active opposition member to tackle the strengthening the fight against corruption. Shortly complicated issue of asset disclosure. In late March, the afterwards, David Martinez Madero of the Spanish Anti- party proposed changes to the Law 115/1996 asking corruption Prosecutor’s Office drafted a set of dignitaries to complete their declaration in front of a public recommendations which were sent to Bucharest in March

22 (10 April 2002). 23 Cotidianul (29 March 2002). 25 26 2002. The Martinez report was not made public by the banking and trade systems, and public administration. While Romanian authorities, which apparently adopted its promoting the ordinance, Romanian authorities admitted that recommendations only selectively, but instead became a real the new office was just an element of a broader anti- bone of contention between government and opposition corruption program that was yet to be seriously considered. during parliamentary debates on the anticorruption program. As Justice Minister Rodica Stanoiu stressed, corruption Nastase cabinet’s plan to set up a central Anti- would remain a major national problem “as long as most of corruption Prosecutor’s Office was widely acclaimed in the the economy is in state hands, as long as the administrative West. During his November 2002 visit to Bucharest, former reform is unfinished, as long as there is legislative instability, Italian anti-Mafia prosecutor Antonio Di Pietro commended as long as the living standard and the service sector remain the Romanian authorities for their political will to root [underdeveloped].”25 corruption out of politics. In his speech, Di Pietro stressed Rather surprisingly, plans to set up the Anti- that politicians “must be ordinary citizens before the law,” corruption Prosecutor’s Office were vehemently criticized by while state authorities must be willing to make no all political parties. Democrat leader Boc denounced the compromises when it comes to fighting corruption and office’s creation as being doomed to failure and falling “well organized crime. He further said that the judiciary cannot be beyond constitutional limits,” and said that what Romania efficient unless it is politically independent. Drawing on the lacked was the political will to fight corruption not Western experience, Di Pietro contended that “there are specialized institutions. Liberal leader Valeriu Stoica argued numerous instances when politicians engage in economic that shortage of experts, inadequate control of electoral activities or use other people to do that on their behalf. When campaign and party financing, state-owned enterprise making the law, [the politicians] with private interests privatization, and the meager wages of Romanian promote their own interests and simply forget about the prosecutors were factors accounting for corruption. interests of the people … The fight against corruption is not Defending the office, President Iliescu said that “we need an only a legal problem, but also a moral and educational independent structure to take care of [corruption] problem.”24 consistently” not only because this was one of the European To bypass a divided Parliament, in April 2002 the Union’s recommendations but also because “the General Nastase cabinet drafted emergency ordinance 43/2002 on the Prosecutor’s Office deals with tens of thousands of issues setting up of the National Anticorruption Prosecutor’s and works out tens of thousands of files, and thus we need a Office, a new central agency styled after the Italian Anti- specialized anti-corruption structure.” He rejected the charge Mafia Agency. Part and parcel of the set of promises the that the anticorruption campaign would become politicized Social Democrats assumed during the 2000 electoral because the Justice Minister controlled the appointment of campaign, the ordinance was presented as a necessary step the new anticorruption general prosecutor, as “there are no for Romania’s integration into the European Union that laid ‘our’ and ‘their’ corrupt individuals. Corruption erodes the foundation for a new office not paralleling or competing social cohesion and this problem interests both the with already existent structures, but rather assuming the lead government and the opposition.”26 Vowing to make it his in the fight against corruption in the economic sector, 25 22 (19 June 2002). 24 Ziua (30 November 2002). 26 Jurnalul National (5 February 2002). 27 28 utmost priority, Iliescu said that the fight against corruption Liberal deputy challenged the list of dignitaries is “a matter of life or death for our society,” and that who fell under the office’s jurisdiction if engaging in acts of “[Romanians] must give up the practice of using political corruption, and pointed out that the list did not include the positions for group or personal advantage.” Showing Romanian President and his staff. At his urging, deputies disappointment that his personal example was insufficient to extended the list to include Supreme Court of Justice judges, inspire the political class, Iliescu pledged to keep the new presidential and state advisers, high-ranking policemen, office sheltered from pressures of any kind.27 county council presidents, the Bucharest general and district According to Article 114 of the Constitution, mayors, mayors of major cities, public notaries, Financial governmental emergency ordinances must muster the Guard commissaries, and leaders of the administrative support of a simple majority in the legislature before taking boards of state-owned banks and firms. Stroe further effect. As a result, the emergency ordinance 43/2002 was challenged the provision allowing the office to investigate introduced first in the Chamber of Deputies and then in the corruption cases producing a “grave disturbance in the Senate, being discussed by the specialized parliamentary activity of a public authority.” By failing to define “grave committees before being debated by the full house. In the disturbance,” he argued, the ordinance left room for Chamber of Deputies, lack of quorum, a long-standing interpretation and abuse.29 But the version the deputies affliction of the Romanian legislative process, impeded the approved did not elaborate on the meaning of “grave adoption of the ordinance for several weeks. Finally in mid- disturbance.” April 2002 the ordinance was adopted in the fourth round Equally controversial was the nomination procedure with 184 votes for and 64 votes against. The Social for the anticorruption general prosecutor. According to the Democrat and the Democratic Union majority supported the ordinance, the head of the anticorruption agency was ordinance, while the opposition rejected it. appointed by the Romanian President at the proposal of the The vote was preceded by bitter disputes revolving Justice Minister. But opposition deputies and the Chamber of around several themes. The first bone of contention was the Deputies judicial committee asked for the proposal to be competency of the new office. The ordinance stipulated that made by the Supreme Council of the Magistrates on grounds the new structure investigated corruption cases as defined by that the separation of powers principles be observed and the the law on the prevention, eradication and punishment of anticorruption campaign remain depoliticized, something corruption (Law 78/2000) if, regardless of the perpetrators, impossible if the appointment was controlled by a they resulted in a material damage over 100,000 Euros or a government representative. Pleading with his colleagues, grave disturbance to the activity of a public institution, or 28 were committed by public officials. Taking the floor, granting non-performing bank loans, using loans/subsidies for un- approved destinations, using insider information or information not 27 Monitorul (23 November 2002). destined for the public, and the use by a party leader of influence to 28 Law 78 of 8 May 2000 banned public officials and leaders of state- obtain personal advantages. Acts associated with corruption were money owned companies, political parties, trade unions, for-profit or non-profit laundering, false reporting, complicity to corruption acts, illegal selling organizations from using their public positions for personal gain, and of proceedings obtained from corruption acts, fiscal evasion and drug asked them to disclose their assets within 30 days. Acts of corruption trafficking. A Department for the Fight against Corruption and Organized included receiving/giving bribe, traffic of influence, the unjustified Crime was organized as part of the Supreme Court of Justice. depreciation of the value of state-owned assets slated for privatization, 29 Curentul (19 April 2002). 29 30 deputy Boc warned that the fight against corruption turned political police. And the opposition criticized the into a government-controlled political vendetta and, to give government’s decision to draft the ordinance rather than more weight to his claims, quoted a statement from the submit the legislative proposal for Parliament’s Martinez report reading that “the Justice Minister’s consideration. Boc even went so far as to vow to petition the involvement in the prosecutors’ nomination facilitates their Constitutional Court against the ordinance, without further subordination to government and even private interests.” The elaborating on the ordinance provisions which, in his view, proposal was rejected by the house. A Democratic Union ran counter to the basic law. While none of these criticisms deputy stressed that the cabinet made the appointment were taken seriously by the majority, the Chamber of procedure of the anticorruption general prosecutor similar to Deputies denied anticorruption prosecutors access to that of the Supreme Court of Justice prosecutor, in professional lawyers’ secrets, continuing to grant them accordance to the constitution and the law on judicial access to all other banking and professional secrets and the organization. Addressing the chamber, Premier Nastase right to halve the sentence of perpetrators who facilitated the suggested that in drafting the ordinance his cabinet merely prosecution of other perpetrators.30 followed regulations imposed by the 1996-2000 regime, All fourteen cabinet members who were also deputies which allowed the Justice Minister to appoint and dismiss all attended the debates and supported the ordinance, but their Romanian prosecutors. He further said that it was impossible massive presence could not obscure the dissensions within for someone occupying a subordinate office in a ministry the Social Democrat ranks which resulted in a deputy voting (the anticorruption general prosecutor) to be nominated by against the ordinance and several others leaving the meeting the Romanian President, while his boss (the Supreme Court hall rather than participating in the vote. Together with the of Justice prosecutor) was appointed by a minister, and opposition, Social Democrat deputies Cornel Badoiu and reminded that, for the Supreme Council of the Magistrates to Octavian Mitu unsuccessfully tried to convince the house to decide the appointment, the law on judicial organization had accept changes that would break the office’s subordination to be amended. vis-à-vis the Justice Ministry and forbid it to employ Also during debates, Greater Romania Party deputy undercover Romanian Intelligence Service officers. After the Vasile Mois criticized the cabinet for setting up an office vote, Social Democrat senator Antonie Iorgovan, the father with “discretionary powers unmatched by corresponding of the 1991 constitution, criticized the ordinance’s disregard responsibilities,” which, in his view, remained redundant as for the separation of powers principle, while Social long as the General Prosecutor’s Office was also entrusted Democrat youth leader publicly expressed his with the fight against corruption. In a widely publicized worries that the office will remain ineffective unless the statement, Liberal deputy Cornel Stirbei declared that “in legislative framework was completed with the law on Romania one can steal only after becoming a Social witness protection and the law on covered anticorruption Democrat Party member” as that party “acquired a monopoly officers.31 on theft and corruption.” Deputies also warned that the article allowing anticorruption prosecutors 30 days to gather 30 evidence and identify the perpetrator by obtaining banking, Summaries of parliamentary debates are available at www.cdep.ro. 31 Evenimentul Zilei (12 March 2002). This oversight was rapidly financial and audit documents and intercepting phone, mail addressed. During the same year, the government drafted the law on and other communications could turn the office into a witness protection (Law 682/2002). 31 32 After being discussed and voted on by the Chamber for six-year terms (Article 8), the anticorruption prosecutors of Deputies, the ordinance was forwarded to the Senate, are selected from among individuals with distinguished which on 27 June approved it with 92 votes for, six against professional qualities, a good reputation, an impeccable and five abstentions. As a result, the emergency ordinance moral standing, and at least six-year long specialized training 43/2002 was adopted by the legislature as the law on the in the fight against corruption (Article 9). Appointed by the National Anticorruption Prosecutor’s Office (Law Supreme Court of Justice prosecutor with the Interior 503/2002). One month later, on 31 July, President Iliescu Minister’s approval from among police officers with signed the decree appointing Ioan Amarie, head of the university education and at least six years of expertise in the Suceava county Court of Appeals, as anticorruption general fight against corruption, the anticorruption police officers prosecutor. The choice stirred some controversy, as five conduct criminal investigations under the anticorruption years prior to the nomination Amarie had been involved in a prosecutors’ supervision and control (Article 10). The anti- car crash that claimed one life. Though initially charged with corruption office also employs economic, financial and murder, Amarie was later acquitted.32 banking experts, who are appointed by the Supreme Court of According to the ordinance, the new structure is a Justice prosecutor with the approval of specialized national prosecutorial office specialized in the fight against ministries. The experts are considered civil servants corruption. An autonomous, independent structure in the responsible for drafting documents and materials that could Public Ministry, the office is headed by the anticorruption aid prosecutors in their fight against corruption (Article 11). general prosecutor and coordinated by the Supreme Court of The agency is allowed to employ a total of 75 prosecutors, Justice prosecutor. Its activity is conducted according to the 150 police officers and 35 experts (Article 27). principles of legality, impartiality and hierarchical control, Anticorruption prosecutors automatically launch under the authority of the Justice Minister (Articles 1 and 2). criminal investigations in all corruption cases specified by Organized in two sections fighting and investigating Law 78/2000 if: 1) regardless of the perpetrators, they corruption and activities connected to corruption (Article 5), resulted in damages of at least 100,000 Euros or a grave the anticorruption staff includes prosecutors, police officers, disturbance in the activity of a public institution or 2) if their and specialists in finance, customs and the banking system authors are deputies, senators, members of the government, (Article 6), positions incompatible with other public or deputy ministers, Constitutional Court judges, private positions, except for academic posts (Article 12). The Administrative Court members, prosecutors and auditors, office is the first Romanian structure to employ mixed teams legislative council president, ombudsman, National Bank of prosecutors, police officers and economic experts in an president and vice-presidents, Competition Council effort to identify and prosecute corruption acts. president, magistrates, army high officers, public notaries, The office is headed by a general prosecutor local and county councilors, mayors, prefects and deputy appointed by the Romanian President at the proposal of the prefects, managers of public authorities and utilities, national Justice Minister to six-year terms with the possibility of societies and state-owned companies and privatization renewal. Appointed and dismissed by the Justice Minister at agencies (Article 13). To gather evidence and identify the the proposal of the Supreme Court of Justice prosecutor also perpetrators, the anticorruption prosecutors may supervise banking accounts and phone conversations, and access 32 Mediafax (31 July 2002). information systems for a 30-day period, extendable for 33 34 sound reasons (Article 16). If there are founded suspicions a result, a great number of files were transferred from the that a crime was or was about to be perpetrated covered General Prosecutor’s Division for the Fight against police investigators may be used to gather evidence (Article Corruption and Organized Crime to the new structure, along 17). The office offers witness protection and reduced with the five prosecutors working on those cases. The sentences for perpetrators facilitating the identification and Division continues to investigate those files that involve criminal investigation of other perpetrators (Articles 18 and money laundering, drugs and traffic of persons. 19). The conditions imposed on the hiring of anti- As planned, the anticorruption office started its corruption prosecutors and police officers, and probably activity on 1 September 2002, but the preceding summer undisclosed political considerations, meant that the office months were marred by noisy negotiations for nominating had to start its activity with a drastically reduced personnel the personnel of the new structure. While the ordinance but an enormous workload. The agency not only had to provided for anticorruption prosecutors to be selected continue investigating the corruption cases already opened according to professional criteria, attempts were made to by other prosecutorial structures but also deal with new cases transform their selection into a political process when it itself initiated. To avoid deadlock, the nature of cases and political parties represented in Parliament and interest groups the order in which cases were opened were important for close to the ruling party asked for the right to have their giving the office the credibility it needed to become a viable people nominated to the posts. For example, the association tool in the fight against corruption and an edge over other of revolutionaries, representing the participants in the anticorruption agencies which had been set up earlier in post- December 1989 Romanian anticommunist uprising and their communist Romania. The office needed not only to find descendants, asked for one anticorruption prosecutor cases that could be expeditiously solved, to show the public position.33 But the ruling Social Democrats gave in to none its willingness to travel the road from word to deed, but also of these demands. Rather, in the name of the need for to tackle the big cases of corruption closely associated with protecting the identity of the anticorruption personnel, they the political class which, for many Romanians, was chose an untransparent nomination process accountable to responsible for the country’s socioeconomic problems. Thus, the Justice Minister. Very little was known about the identity the office was caught up in a conundrum when trying to of anticorruption prosecutors, police officers and experts, decide whether to give more attention to those files received Minister Stanoiu arguing that “the lack of transparency is from other judicial structures, which because of their already understandable, given the fact that the files on which anti- advanced state presumably required less effort to be closed corruption prosecutors are working involve a high risk of but generally dealt with petty felonies perpetrated by non- pressure and intimidation.”34 Also over the summer, Stanoiu political figures, or to launch investigations into the ordered the transfer to the anticorruption office of all notorious corruption scandals reported by the press, which criminal files drafted during the 1999-2002 period which involved powerful politicians but demanded more time and were related to corruption cases where charges were not laid resources to be solved. The legislation helped the office down or investigations were stopped for various reasons. As neither to cut down its caseload nor to come up with clear criteria for prioritizing cases. Quite the contrary, by making 33 Evenimentul Zilei (20 August 2002). the anticorruption office responsible for investigating both 34 Ziua (4 September 2002). cases resulting in serious damages and those involving 35 36 politicians the legislation placed it in a difficult position. the “dirty” magistrates, a declaration suggesting that Dinu’s With no clear definition of “serious damages to a public petition was not viewed as a priority.35 The statement was in institution,” the anticorruption office could not turn down response to a growing number of press reports uncovering transferred cases that involved minor political and the widespread corruption, nepotism, patrimonialism and administrative public figures. But this type of corruption was favoritism affecting the judiciary. Local analysts saw Joita’s not the high political corruption that the public wished to see statement either as an unwarranted interference in the being brought down to an acceptable level. activity of the new agency or as an attempt to deflect public Equally problematic was the office’s need to be attention from the political class to another segment of the responsive to citizen concerns. Soon after starting its formal society. Whatever the reasons that lay behind it, Joita’s activity, anticorruption prosecutors received the first petition suggestion was seemingly ignored by the anticorruption filed by a citizen against the Financial Investment Societies. prosecutors. On 11 September the agency announced that it In the early 1990s, Romania opted for a mass privatization had already compiled its first file, which reached a program whereby 70 percent of state-owned company assets staggering 9,000 pages, dealt with a 50 billion Lei (around were sold to domestic and foreign private firms through the US$1.7 million) banking fraud carried out in year 2001 in State Ownership Fund, and 30 percent were distributed to the the city of Iasi, and resulted in charges being laid against as population as individual vouchers managed by five many as 20 individuals, none of whom were magistrates or territorially organized Private Ownership Funds, later politicians.36 converted to Financial Investment Societies. On 3 September The first high-profile case followed on 22 October Constantin Dinu asked the anticorruption agency to when the office arrested Fanel Pavalache, personal advisor to investigate whether the Investment Societies have cooked up the Government’s Secretary General and a prominent Social their books, misreported information and brought serious Democrat, for demanding a $4 million bribe to prevent the damages to the stockholders. To thousands of Romanians International Bank of Religions from being declared who saw the value of their vouchers rapidly diminishing, it bankrupt. Journalists alleged that in fact Pavalache cashed was clear that the societies had mismanaged the vast assets the bribe on behalf of more powerful political figures whose they were entrusted with. According to the press, powerful arrest never followed and whose identity was never publicly politicians were handsomely rewarded to use their influence disclosed. Whether that was indeed the case remains an open to shelter society managers from criminal investigations. question. The arrest was hailed by Premier Nastase as proof Several times cheated Romanians took to the streets to that the new office “had no qualms in carrying out its protest successive governments’ unwillingness to help mission and [in sending] out a message to all those who unravel the complicated network of patron-client relations function, so to speak, at the periphery of politics and are that brought the societies close to bankruptcy. Each time sometimes prone to mixing the public and private spheres.”37 their demands fell on deaf ears, reinforcing the popular belief The opposition complained that Pavalache did not that the spoilers belonged or had close ties to the highest belong to the tight circle which has controlled post- echelons of the political class. It took some time before the anticorruption prosecutors were able to delve into the matter. 35 Cotidianul (3 September 2002). Around the same time, General Prosecutor Tanase 36 Ziua (11 September 2002). Joita announced that the office’s first task was to investigate 37 Evenimentul Zilei (22 October 2002). 37 38 communist Romania both politically and economically. credibility to the anticorruption office. First, they disproved While grounded to a certain extent, these concerns ignored claims that when the political will was present investigations the fact that it was the first time since 1989 that a prominent of corruption cases could never be completed in a country member of the ruling party holding a high-ranking state like Romania because of their complex nature and the office was arrested for corruption, not a small task in a difficulties inherent to uncovering illicit ties to which country where politicians believe they are above the laws nobody wants to admit. The arrests showed not only that and governments always start their anticorruption campaigns difficult cases could be solved, but also that investigations with indictments against political opponents. These critics could be made at a fairly rapid pace. Second, the arrests also conveniently omitted to say that top government suggested that evidence was not easily lost and older cases officials enjoyed immunity and, as such, could not be could still be brought to justice. More importantly, the arrests prosecuted while in office. Indeed, the 1991 constitution pointed to the ruling Social Democrats’ willingness to start does not provide for separation of powers but instead adopts the anticorruption campaign with investigations directed the Westminster-style fusion of powers model, allowing against their own members rather than to transform it into a cabinet members to be Parliament members, who in turn political vendetta against the opposition. The new agency enjoy immunity while in office. Article 69 of the constitution seemed to be independent enough from the executive to reads that “deputies and senators cannot be arrested, strike a blow to individuals dangerously close to the top searched or tried without the approval of the chamber they echelons of political power. While Social Democrat leaders belong to and only after being interviewed. The case is heard tried to minimize the importance of Pavalache’s arrest, by the Supreme Court of Justice.” Nor was Pavalache as clearly they did not significantly interfere with the agency. minor a player as the opposition suggested. In fact, he was a This is not to say that Social Democrat luminaries did “Club 75” member who made substantial contributions to the not try to gain a strong hold of the office or that the office’s ruling party, possibly in exchange for a high state office independence was absolute rather than relative. President and/or obtaining protection for his refusal to repay a 1.5 Iliescu acknowledged that obscure forces were at work when billion Lei ($50,000) loan obtained from a state-owned reiterating his commitment to protect the agency from financial institution. Soon afterwards, head of the political pressure, with Prime Minister Nastase replying that Agriculture Ministry Antifraud Department Florica the office did not need anybody’s protection to be truly Dinculescu was arrested for receiving a $190,000 bribe from independent. But this caustic word exchange also reflected an Italian firm interested to win a tender for the privatization the proverbial animosity separating Nastase from Iliescu of a Romanian state-owned company. Dinculescu’s which stemmed from differences in their age, social accomplice, Christian Democrat leader and former background, political stance and policy options. When it Agriculture Ministry director Dan Jiga, was also arrested.38 came to the fight against corruption, both Nastase and Iliescu While Pavalache’s arrest was criticized as a hasty recognized its need but disagreed on the methods appropriate move designed not to unravel the corruption plaguing top for carrying it out. In the same breath Iliescu stated his governmental structures but to cover the links between him willingness to help eliminate the “bad habit” of using and key members of the executive, these arrests did offer political positions to satisfy personal or group interests and fight corruption, which "remains a matter of life and death 38 Ziua (26 October 2002) and Adevarul (19 November 2002). for the Romanian society," and urged state officials to be 39 40 “models of decency, modesty, fairness, and law abidingness allow his office to investigate only high-profile cases. so that the people trust them." Nastase identified the fight Another apparent reason for the office’s reluctance to tackle against corruption as a governmental priority, and admitted high-level corruption cases was represented by the mistakes that already adopted measures were insufficient to reduce and hesitations that followed its earlier high-profile arrests corruption significantly.39 and left the office open to criticism. In the Pavalache case The office’s efforts to crack down on corruption and anticorruption prosecutors promised, but never produced, fraud were echoed in December by a Supreme Court of hard evidence in the form of video cassettes. This prompted Justice ruling which, for the first time, found a former some Romanians to question the very existence of the member of Parliament guilty of fraud. Gabriel Bivolaru, a recordings, and implicitly the probity of anticorruption one time Social Democrat luminary and a deputy from prosecutors. Another reason was the agency’s need to keep November 1996 to March 1999, was sentenced to a three- up a steady number of arrests at a time when no other high- year prison term for defrauding the Romanian Bank of profile case was completed. Development.40 Bivolaru, who masterminded a notorious Things took a turn for the worse when in late banking fraud, had enjoyed the support of the Social December Aurelian Pavelescu, leader of the Romanian Democrat Party leaders, including Adrian Nastase, who Lawyers League, accused the anticorruption office of being constantly voted against limiting parliamentary immunity unconstitutional and of having no right to launch criminal and in a rare show of support accompanied him to police investigations and make arrests. While organizing the interrogations. His long-overdue sentencing seemed to mark defense of former Transilvania Bank president Iosif Pop, the overcoming of a psychological threshold for the Social whom anticorruption prosecutors arrested for 30 days, Democrats. Shortly thereafter, the anticorruption agency Pavelescu charged that prosecutors destroyed valuable arrested director of the Bucharest-based Radet public utility documents that proved Pop’s innocence, and that Amarie Gheorghe Dabela for a 150,000 Euro bribe received from a authorized Pop’s arrest without even reading the file. The German investor.41 The arrest was hailed by the citizens, defense attorney also argued that Law 503/2002 ran counter exasperated by ever growing utility costs. Articles 130 and 133 of the constitution, reading that only After these highly publicized arrests, the office the Supreme Council of Magistrates can appoint Romanian shifted its attention to cases of minor importance. One reason prosecutors. Instead, Pavelescu claimed, the Justice Minister for this move was given by prosecutor Amarie, who in mid- had created a new kind of prosecutors – the anticorruption December told a European Commission delegation that his prosecutors – completely subordinated to the ruling party, 55 anticorruption prosecutors were overwhelmed by the 700 and as such the office represented a “political police.”42 cases they were working on, most of which involved petty Despite these charges, the office continued to corruption and took away valuable resources that could be investigate prominent politicians. In February, Ialomita directed toward uncovering high-level corruption. Amarie county prefect Marian Balan and Satu Mare city mayor suggested amendments to the Law 503/2002 that would Horea Anderco came under suspicion, and Arad county leader Gheorghe Medintu was arrested. All three were key

39 Mediafax (22 November 2002). 40 Ziua (4 December 2002). 42 Aurelian Pavelescu is not related to Fanel Pavelescu mentioned earlier. 41 Curentul (7 December 2002). Ziua (20 December 2003). 41 42 local Social Democrat leaders enjoying the protection of the saw as a clear indication that the office was not politically party’s top leadership. But other Social Democrat ‘local independent.44 President commended the office barons’ whose involvement in corruption scandals was for its accomplishments, but also noted the many mistakes notorious were not summoned by the anticorruption surrounding “arrested people whom, months later, the office prosecutors. As a result, journalists wondered whether the [exonerated and] asked forgiveness from.”45 arrests targeted the weakest links in the Social Democrat As Amarie’s activity report fell short of expectations, party chain or represented the start of a comprehensive effort in mid-March 2003 Democrat Boc asked the Anticorruption to rid the party of its corrupt elements. During the same time, Prosecutor’s Office to submit to Parliament its 2002 activity Democrat leader Basescu was interviewed by the presidential report, including the number of investigations launched, the special commission investigating the activity of ministers number of cases solved, the difficulties and political pressure following a petition signed by Amarie. Asked about his the office had to overcome, and proposals for amendments to involvement in selling the Romanian naval fleet during his the legislative framework overseeing the office. The deputy mandate as a Transportation Minister, Basescu denounced claimed that Law 503/2002 provided that every spring the the investigations as “the government’s attempt to eliminate Office must submit to the legislature an activity report on the a political adversary.”43 previous year. However, the law includes no such stipulation When his office celebrated five months of activity in and no details on whether such a report had to be submitted January 2003, Amarie declared that anticorruption for the September – December 2002 period. Without prosecutors were “working on cases involving former and elaborating, Boc further contended that explanations were current ministers and deputy ministers,” and denounced both needed for the office’s failure to apprehend some “the attempts of some luminaries to intimidate anticorruption perpetrators, since it was evident that the anticorruption prosecutors” and the launching of “parallel investigations by office was not yet cooperating smoothly with the Justice non-judiciary structures” such as the press and opposition Ministry, the General Prosecutor’s Office or the Interior parties. He further said that “interest groups drawn from Ministry.46 The Office ignored Boc’s request, but made almost all social categories had tried to have their people public its activity report for the first trimester of 2003, during appointed to the office,” without naming names. Amarie also which time the Office read 1,161 corruption cases. Of these listed methods perpetrators used to intimidate the anti- 222 were solved, and 231 were sent to other offices. In 38 corruption prosecutors, including mass media campaigns cases charges were laid against 123 individuals for directed against the office, allegedly meant to distract involvement in 287 acts of corruption. Some 26 charged prosecutors from their work, tarnish their reputation and individuals had positions of responsibility and management. involve the public in evaluating the cases, as well as overt By the end of its first year of activity, the office announced it and covert pressure applied by various public figures in order had solved 682 cases. In 119 cases charges were laid against to influence the outcome of investigations, and even death threats targeting the prosecutors. But after being reprimanded by the government, Amarie denied that current ministers were investigated by his office, a fact which many 44 Ziua (24 February 2003). 45 Valcea on line (31 January 2003). 43 Curentul (26 February 2003). 46 Puls on line (14 March 2003). 43 44 429 individuals, 260 of whom occupied positions of censure motion against the government, with the Greater responsibility.47 Romania Party following suit. According to Article 112 of the constitution, Parliament can adopt a censure motion The Anticorruption Bill against government with the vote of a simple majority of legislators. The motion needs the support of at least one- Recognizing the inadequacy of the legislation, the fourth of deputies and senators to be introduced, and must be Nastase cabinet asked Justice Minister Stanoiu to design a discussed by the two chambers within three days. If rejected, complex anticorruption bill banning conflict of interests, the motion cannot be reintroduced in the same session unless describing situations of incompatibility between public and cabinet assumes responsibility. If accepted, the government private positions that were to be avoided, and further must step down. Stepping up criticism, deputy Boc argued detailing the role of the Anticorruption Prosecutor’s Office. that the bill was discredited by provisions allowing Ultimately, Stanoiu drafted provisions compelling state legislators to remain on company administration boards in dignitaries to publicly disclose their assets both at the exceptional cases, and predicted that this "concession, which beginning and at the end of their mandates, banning state permitted Social Democrat 'barons' to continue their dignitaries and their close relatives from simultaneously business," would probably become the rule and "turn the holding public office and managing companies bidding for fight against corruption into a mock campaign allowing contracts handed out by that office, and envisioning the corruption to go underground." Boc’s greatest fear was that creation of a national information system that would allow "since such cases are to be voted by a Parliament and for transparent adjudication of state contracts and government dominated by the Social Democrats, corruption privatization tenders. In an unprecedented move, the bill was would remain a family affair" benefiting the ruling party at posted on the government’s internet site and made available the expense of all other political actors.48 Democrats to the public soon after being drafted. In its 13 March 2003 unsuccessfully proposed changes asking dignitaries to renew meeting, the cabinet approved the bill, not before operating their asset declaration on an annual basis, and to disclose changes suggested by opposition and civil society their art, coin and stamp collections over 10,000 Euro and representatives. The amendments included the Romanian loans obtained with preferential interest rates from bankrupt president and court judges among those who must disclose Romanian banks. Civil society representatives denounced their conflict of interests. incomplete provisions on asset declaration. Renate Weber, Reactions to the bill bordered on condemnation, Foundation for an Open Society president, explained that a labeling it an imperfect collection of provisions covering a dignitary’s "refusal to submit the declaration at the beginning vast array of situations only partly pertaining to anti- of the mandate goes unpunished. Submission to the end of corruption. Its omissions and commissions were harshly the mandate results in the launching of investigations, but criticized by opposition parties, which set out to block the results cannot be compared to the data in the first declaration bill altogether rather than suggesting ways to improving it. when this does not exist."49 Days after the cabinet endorsed the bill the Democratic Party pledged its support to the Liberal proposal for drafting a 48 Mediafax (28 November 2002). 47 Ziua (30 August 2003). 49 Mediafax (14 March 2003). 45 46 Despite criticism, on 18 March the Social Democrat legislation that would ensure the transparency of public leadership decided unanimously to support the bill for which office and business environment, and provisions turning the the Nastase cabinet assumed responsibility in front of civil servants into a professional class with clear rules Parliament. According to Article 113 of the constitution, the governing recruitment and promotion. The titles range in executive can assume responsibility for a program, a political length from as little as two pages to as much as 34 pages. declaration or a legislative proposal. The cabinet must step Public disclosure of the amount of outstanding debts to the down if a no-confidence motion introduced three days later state budget is regulated by specifying the obligation on each is adopted by Parliament. If the cabinet is not required to public authority to post electronically the list of indebted step down, the legislative proposal is considered adopted by companies. For guaranteeing the transparency of public Parliament. Defending the cabinet’s decision to assume information and service management a National Electronic responsibility, Premier Nastase said that, though imperfect, System is to be created for the benefit of individuals and the bill was a clear signal of the government’s and the firms. Also regulated is the prevention and punishment of party’s determination to fight corruption. To win over Social internet crime, with emphasis on personal data protection. Democrats afraid of losing lucrative positions in the private Breach of confidentiality or tampering with data and sector, Nastase mentioned the exception allowing legislators information systems result in fines and jail terms. to be company administrative board members. He presented Much anticipated by the public was Title IV of the the bill as a measure aimed “to remove a great obstacle to the first book, which regulates conflict of interest and credibility of the country, its state institutions and political incompatibilities between public offices and private class," and “an important step forward towards honoring our functions. Provisions apply to all civil servants and public pledges to the electorate, the European Union and NATO.” officials, starting with the President, legislators and cabinet He also said that the bill rested on an in-depth analysis of members, and ending with local and county councilors, Romanian realities and domestic and foreign perceptions mayors and civil servants (Article 69). Conflict of interest regarding corruption in the country, and was designed to occurs when an individual’s personal interests influence offer efficient solutions to prevent and combat corruption by his/her activity in a public office (Article 70). Ministers and ensuring transparency in public administration and economic deputy ministers, prefects and deputy prefects are banned activity. from issuing orders and making decisions benefiting The government-drafted law on measures to increase themselves or their first-degree relatives (Article 72). Failure transparency in public administration and economic activity to do so results in decision annulment and a three-year ban and to prevent and combat corruption contains two books of on holding public office. The Prime Minister’s Control more than 150 pages in total. Presenting general provisions Office investigates such cases and presents the results to the for fighting and preventing corruption, the first book has five Premier, who decides the measures to be adopted. The titles dedicated to the transparency of unpaid arrears to the decision can be appealed within 15 days or, if definitive, are national budget, the electronic management of public published in Monitorul Oficial (Article 73). The Control information and services, the prevention and punishment of Office can be petitioned by any individual or can initiate electronic crimes, conflict of interests and incompatibilities investigations (Article 74). The same provisions apply to in assuming public office, and economic interest groups. The local elected officials, in which case investigations are second book specifies amendments to existing anticorruption conducted by the prefect (Article 76). For public servants, 47 48 conflict of interests occur when making decisions and mandate or their economic position lose their mandate by solving petitions put forth by individuals and firms which order of the prefect (Article 91). they are tied to, participating in commissions with other civil Civil servants, elected officials and state dignitaries servants who are also their first-degree relatives, or when must submit declarations of interests detailing the positions their own and their relatives’ interests influence their and offices they occupy in associations, foundations, non- decisions. Civil servants must announce their supervisors governmental organizations, political parties, paid and abstain from decision making, which is entrusted to professional activities, and shareholder in companies, banks, other civil servants (Article 79). insurance and financial trusts (Article 111). The declaration The same title makes deputy and senator positions is submitted within 60 days from the law’s adoption or 15 incompatible with other public office, administrative and days from assuming the mandate/office, and must be managerial positions in companies, public utilities and renewed each time conditions change (Article 112). institutions, private entrepreneur, economic interest group Declarations are public and submitted as follows: the member or foreign civil servant. Legislators can be cabinet President and presidential and state advisers submit them to members, professors or researchers. In exceptional cases, the presidential chancellor, deputies and senators to the Parliament leaders, at the government’s proposal, allow house leadership, ministers and deputy ministers to the legislators to act as state representatives in the administrative Government’s Secretary General, prefects and deputy board of public utilities, national companies and public prefects to the prefecture secretary, mayors and councilors to institutions “when the public interest demands it” (Article the council secretary, and civil servants to the personnel 82). Parliament members in incompatibility when the anti- department of their public institution. The names of those corruption bill takes effect must inform the chamber failing to submit the declaration are to be made public on the leadership within 15 days, and give up either their legislative internet (Article 113). mandate or their economically-related position within 60 By the time the bill was presented to Parliament, days. Failure to do so results in loss of mandate (Article 83). opposition parties had already drafted the no-confidence Similar provisions apply to ministers, deputy ministers, motion. Days after addressing Parliament, Premier Nastase prefects and deputy prefects, who must declare their declared his surprise that the opposition rejected a bill waited incompatibility at the beginning of their mandate and whose for by all parties wishing anticorruption regulations to be involvement in commercial activities is approved, on an enforced. The bill’s many flaws, he said, could be eliminated exceptional basis, by the executive (Articles 84 and 85). through dialogue between government and opposition. He Mayors, councilors and their first-degree relatives are also deplored the ‘strange’ alliance binding the pro-democratic banned from being major shareholders of companies set up Liberals and Democrats to the chauvinistic Greater Romania by local and county councils (Article 89). Companies Party for undermining these parties’ political credibility and managed by councilors and their close relatives cannot bid for showing that the bill "annoyed the opposition, which for contracts offered by the councils (Article 90) and must denounces corruption the loudest,” and suggested that annul such contracts if they are already agreed upon, procrastinating the anticorruption campaign could allow the otherwise the ‘incompatible’ local or county councilors lose forming of a state-weakening partnership of "mobster their mandates (Article 92). Mayors and local and county economic groups and profoundly corrupt political councilors who refuse to give up either their political structures." Nastase stressed that political parties and the 49 50 civil society have "a joint responsibility to give a clear signal measure of legality to financial schemes allowing public for the purification of the political climate and for the funds to be siphoned off by its leaders and political separation of political and economic activities," given the clientele,” the motion read. The document criticized every fact that the anticorruption campaign is key to boosting title of the anticorruption bill, paying special attention to the Romania’s international credibility. "We do not understand Premier’s role in deciding appropriate measures to punish those who, instead of helping us improve the bill, aim to conflict of interests and incompatibility, “a blatant shoot it down,” Nastase reacted to a proposal to allow the infringement of the separation of power principle, which bill to follow the normal route of legislative approval by makes the judiciary the Prime Minister’s personal tool.” The being discussed by Parliament. He reminded that as early as asset declaration came under scrutiny for setting the minimal 1993 a legislative proposal on conflict of interests was limit for disclosure at 10,000 Euros, a significant sum of submitted to Parliament, without ever being discussed.50 To money by Romanian standards. In its second part, the motion preempt criticism, Chamber of Deputies Speaker Valer offered examples of onerous deals involving cabinet Dorneanu vouched that the cabinet’s move to assume members, gave a succinct summary of press reports, but responsibility for the bill was constitutional, and caricatured offered no hard evidence to support these accusations. The the motion as a "digest of press articles, lacking in both motion accused Nastase of owning several residential content and objectivity." Responding to claims that the properties, including a model farm whose total value far motion could gather the support of disgruntled Social exceeds the possibilities of an East European dignitary, of Democrat legislators, Dorneanu said that members of his supporting Gabriel Bivolaru in exchange for a plot of land in party were responsible individuals placing the general downtown Bucharest, of influencing the outcomes of several interest above their personal interests.51 privatization deals benefiting the Social Democrat Party On 31 March Parliament debated the censure motion more than the Romanian state, and for appointing himself "Mafia Suffocates Romania," initiated by 172 opposition head of the Romanian Hunters’ Association to control the representatives, who charged the government with assuming association’s vast resources. Four ministers were criticized responsibility not for a bill but for “an eclectic amalgam of for directing public funds to party coffers, and local Social 15 laws,” for allowing the country to be controlled by mafia Democrat ‘barons’ were accused of spoiling state resources, groups dominated by Social Democrat leaders, for whose names were well known to the Romanian public. The simulating the fight against corruption while protecting opposition reminded legislators of recent anti-governmental corrupt individuals, and for arbitrarily equating business and strikes where slogans like “Government terrorists are worse corruption while refusing to recognize the real causes of than Bin Laden” were heard, before asking the Parliament to corruption (clientelistic political relations, over- vote against the anticorruption bill and for the motion. bureaucratization, rigged tenders, over-taxation and the Instead of rejecting the accusations, Nastase said that politicization of public office and civil servant corps). While the motion was filed by parties whose members were hardest poverty was on the rise, “corruption was institutionalized by hit by the bill, and defended the government’s decision to the [Social Democrat] party-state which vainly tries to give a assume responsibility as crucial given the deep divisions in Parliament. Citing a government-sponsored opinion poll, 50 Mediafax (21 March 2003). Nastase said that 92 percent of respondents supported the 51 Rompres (28 March 2003). bill, 84 percent favored punishment of conflict of interests, 51 52 95 percent saw asset disclosure as needed, and 96 percent By the 20 May 2003 deadline, 53 senators and 99 viewed corruption as a problem of utmost importance. deputies declared themselves ‘incompatible’ (see Table 2). Charging that the motion was concerned not with improving The Social Democrat leaders warned those asking to be the bill, but with blocking the anticorruption campaign, he allowed to retain both their public office and private position criticized the motion’s unclear purpose and considerable that such favors were to be granted on an exceptional basis length, and highlighted the positive response of international only. Earlier 14 deputies had admitted that they needed help organizations and foreign governments to the bill. “The to evaluate their status correctly, and as a result the Senate’s motion includes demagogic, inaccurate, unsupported, Judicial Committee agreed to draft a list of possible slanderous formulas misleading the public opinion," while situations of incompatibility. After some debate, the “the bill is not a public relations stunt, but an important piece committee extended the area of compatibility such that of anticorruption legislation,” Nastase said when pleading school principals, university presidents, deans and with legislators to vote for eliminating corruption from department heads, lawyers, and heads of non-profit administration and economic activity. Transportation organizations, foundations and trade unions could retain both Minister Miron Mitrea opined that the Democrats and positions. When the committee came under fire for Liberals criticized the bill because their representatives in employing a double standard for government and opposition Parliament controlled several private companies, a situation representatives, journalists disclosed long lists of deputies banned by the bill. "It is hard to accept a law that takes you and senators who refused to admit their incompatibility, out of either politics or businesses", said Mitrea, charging although their involvement in private business was well that the opposition wished to perpetuate the grand robbery documented. While two opposition deputies gave up their Romania was subjected to during the 1997-2000 period. mandates, most Parliament members solved their Ultimately Parliament rejected the motion with 281 votes incompatibility status by renouncing their private positions. against 163, and as a result the anticorruption bill was The 152 ‘incompatible’ Parliament members were asked to considered adopted. present the committee with written proofs from the Commerce Registry that they gave up their involvement in private businesses if wishing to retain their political From Theory to Practice mandates. In late May the asset declaration forms were posted The anticorruption bill set clear deadlines for public on the internet sites of central and local governmental officials to solve their incompatibility status and disclose institutions and widely commented in the press, to the their assets, and this time the government announced its delight of ordinary Romanians eager to find out how rich intention to monitor closely the implementation of the bill. their public officials were. Declaration forms included two Central and local government bodies were asked to conform major sections besides the signature and the warning that to the new stipulations and make sure that public officials incomplete or false information were to be punished. Public observe the deadline provided by the bill. Informal seminars officials were first called to disclose the total area, value and on explaining the new legislative requirements were held in acquisition date of their land plots and buildings (apartments, each and every institution, and declaration forms were residential and holiday homes, and commercial space), as distributed. well as the manufacturing date and type of cars, tractors, 53 54 agricultural machines, yachts and boats. The other items did institutions by 1 June 2003. The Ministries of Justice, not ask for precise information, being instead presented in Interior, Culture, Sport and Youth Affairs, and the Ministry for the Relation with Parliament chose not to make available Table 2: Incompatibility by Political Party electronically the asset declarations of deputy ministers. According to their own statements, a majority of deputies, senators, ministers and deputy ministers owned land, at least an apartment, a house and a foreign car, but only a minority of of and ble’ ble’ Total Party Total had bank accounts and company shares of over 10,000 Senate Senators Deputies Deputies Chamber Number of of Number ‘Incompati Euros. The odd elected representative declared a boat, a Social 53 32 85 221 motorcycle, art collections, valuable jewels, or agricultural Democrat Party machines. Less than 15 percent of officials answered Greater 12 10 22 106 affirmatively to the items referring to commercial space, Romania Party loans, other assets, other activities, and gifts received. Five Democratic 8 2 10 36 Party state dignitaries declared no assets. At the other end of the Liberal Party 12 2 15 40 spectrum, some public officials listed eleven apartments, Humanist Party 4 - 4 16 nine houses, 66 different commercial spaces, eight cars, and Democratic 4 5 9 39 as much as 80 hectares of land. Union A brief look at declarations reveals that not all public Independent/ 6 2 8 26 officials took disclosure seriously. Some officials filled in Minorities Total 99 53 152 484 only part of the declaration, others preferred to strike down both answers (yes and no) to the items included in the second Source: Cotidianul and Ziua (7 May 2003), and www.cdep.ro. section, and still others claimed that they could not list all of their possessions because of lack of space. Some listed most the yes/no format. Deposits (in Lei or foreign currency) of their assets as having been inherited from parents and opened at Romanian and foreign banks and loans given to well-disposed distant relatives and acquaintances. A handful and taken from other parties if greater than 10,000 Euros, of Greater Romania Party representatives took the other sources of income and activities if resulting in annual opportunity to oppose and mock the process openly, by revenues over 10,000 Euros had to be declared, alongside either mentioning their pets and cemetery plots or by writing with gifts whose value exceeded 300 Euros, and company critical comments. While forms clearly asked officials to 52 shares worth more than 10,000 Euros. Officials had to declare their own and their spouses’ assets together, some report the assets owned by themselves, their spouses and (including the Premier) preferred to attach separate sheets minor children. detailing spousal assets, a practice denounced by President Table 3 presents a summary of the declarations Iliescu with the words “after marriage, property is common: posted on the internet sites of central governmental same house, same bed, same things.”53 When found by the press as omitting to mention two old houses he owned, 52 A second round of asset declarations asked signatories to declare the Euro equivalent of the total sum of all of their bank accounts. 53 Monitorul (26 May 2003). 55 56 deputy Culita Tarata insisted that the houses were small and 25 of the 41 counties, those of prefecture leaders for 31, and uninhabitable, although television footage seemed to indicate those for prefecture staff for 28.54 that they were similar to the houses most rural Romanians Declarations presented several limitations drastically live in. restricting their capacity to provide a clear picture of whether assets were acquired through legal or illegal means before or Table 3: Asset Declarations on Internet (as of 1 June 2003) during the mandate. As in the case of incompatibility, the biggest drawbacks were the lack of any real means of

verifying the accuracy of the information, which allowed officials to underreport their assets, and a restricted family N* Cars Bank Bank

Share- definition, which permitted an unspecified number of foreign holders Houses Houses Deposit (acquired (acquired Company (acquired (acquired after 2001) after Apartments Apartments Land plots plots Land after 2001) after 2001) Institution officials to transfer most of their assets to their adult children Chamber 328 219 369 281 297 112 74 to protect them from the public eye. Moreover, asset origin of Deputies (328) (47) (76) (227) remained unspecified. While some officials chose to identify Senate 138 102 157 127 153 58 28 inherited assets and the assets owned by their companies, the (140) (21) (37) (112) practice was not uniformly embraced. Inconsistencies were Gov’t 27 13 37 (4) 22 (7) 27 18 3 (27) (24) also found in reporting apartments and houses under Deputy 64 36 76 (8) 35 (10) 59 29 10 construction, and the total value of residential property. Ministers (76) (44) Leased cars did not have to be declared, since formally they ** were owned by car rental companies. Whether by oversight * No. of public officials who submitted declarations, followed by total number required to disclose their assets. or design, officials had to report their cars’ manufacturing ** Only deputies of cabinet ministers, as listed on the official government site, date, not acquisition date. As only bank deposits of over www.guv.ro. 10,000 Euros were to be reported, officials could hide multiple deposits of up to 9,999 Euros each. Even if the Law enforcement diminished as one moved further actual amount of deposits were stated, it could not be away from Bucharest. Fewer central institutions disregarded compared with deposits at the beginning of the mandate. the need to make asset declarations available to the public While company shares were declared, it remained unclear than county-level agencies, which in turn obeyed the law in whether officials wrote down their market or nominal value, greater numbers than local governmental bodies. At the being known that the former greatly exceeds the latter. county level, fewer offices of the prefect, central The country’s Social Democrat leaders congratulated government’s representative in the territory, made themselves for taking an unprecedented step making declarations available electronically. In late September, all Romania the most open European country in terms of asset county councils but those of Bistrita Nasaud, Covasna, Hunedoara, Ilfov and Satu Mare had published electronically 54 Updated from “Legea 161/2003 – primele luni de la adoptare. all county councilor declarations. Declarations of non- Transparenta averilor si declararea intereselor” (Bucharest: Institutul elected county council staff were available electronically for pentru Politici Publice, September 2003) and Valerian Stan, “Cateva observatii cu privire la aplicarea Legii nr. 161/2003 la nivelul Senatului, Camerei Deputatilor si Administratiei Prezidentiale” (Bucharest: n. p., September 2003). 57 58 disclosure by public officials, but the opposition and the civil Conclusion society remained skeptical of the benefits of what they saw as a futile exercise devoid of content. For one journalist While Premier Nastase has repeatedly declared his “politicians used this occasion to cover the value of their real satisfaction with it, the anticorruption bill will prove assets. To avoid incompatibility, they gave their company effective only to the extent that it delivers concrete results in shares to family members and trusted friends, fictitiously the important areas of office incompatibility, asset disclosure transferred their houses and buildings, and invested more in and the prosecution of corruption cases involving politicians art collections, whose real value does not have to be and public officials. Nastase’s impatience with the subject of disclosed [because] in Romania there is a generalized corruption, reflected in his words “show me the corrupt to practice of ignoring the law, a national sport.”55 Another shoot them on the stadium. I am tired of those who speak journalist could not hide his surprise that Romania had so only of corruption,”58 might come too early. There are many “poor and honest Parliament members with rich wives several areas which need special attention and resolute action and kids,” and that “deputies and senators who control entire if the bill is to become an efficient tool in the fight against counties failed to mention the counties on their political corruption. declaration.”56 Democrat senator Petre Roman warned that Legislative provisions covering office incompatibility “the government assumed responsibility for the anti- should be amended and complemented with clear guidelines corruption bill but not for its consequences,” and asked for for situations when political office cannot be combined with methods to verify the accuracy of the reported information to other positions, be they remunerated or not. While this move be devised as soon as possible.57 The government embraced is unlikely to transform incompatibility into a non-political the suggestion, and in late May 2003 adopted emergency decision, it could at least guarantee that the list of ordinance 40/2003, amending the anticorruption bill, asking incompatible situations does not change with every new officials to state the real Euro amount of their bank deposits, general election, and that consistent choices are made across and giving the Romanian President the right to allow successive legislatures. Currently, the incompatibility status officials appointed by him to retain their business positions. is decided by a commission dominated by the ruling Social The heads of the intelligence offices, the ambassadors, the Democrats. To date the commission has taken great liberties, Anticorruption Prosecutor and the Supreme Court of Justice and has failed to justify fully its verdicts, which continue to prosecutors belong to this latter category. be challenged by deputies and senators. Double standards have been applied not only to members of the opposition and the government, with some being denied what others were allowed, but also to non-political positions extremely close in nature, with some but not others deemed incompatible with public office. Even more important is for the political class to recognize that office incompatibility in itself does not address the real issue of conflict of interest, which can

cover many other situations where undue influence is applied 55 Monitorul (19 May 2003). 56 Cotidianul (21 May 2003). 57 Cotidianul (13 May 2003). 58 Quoted in Le Monde (11 May 2003). 59 60 in subtler ways by public officials not directly and overtly how poor public officials are, but how exactly they obtained linked to private interests. For this a national registry of their assets and when collusion took place. interests detailing the involvement of national and local In the summer of 2003, the high-profile arrests public officials, their relatives and close partners in operated by the Anticorruption Prosecutor’s Office were economic activity is essential, as are clear sanctions and open to question when it was discovered that, counter to the procedures for launching investigations.59 anticorruption bill, cases had been heard by one judge, not All these observations apply to asset disclosure as two. This technicality allowed defense teams to petition the well. Officials found to provide incomplete and false Supreme Court of Justice and ask for the release of information, and those refusing to provide any, should not Pavalache, Medintu and some lesser known individuals the only be expelled from the political party they represent but Office charged with involvement in acts of corruption. To they should also face stiff criminal sanctions, since the prevent the release of Pavalache and Medintu, judges issued requirement to disclose one’s assets is not merely a party new arrest orders for new charges, a measure which the policy, but the provision of adopted legislation. Declarations defense teams saw as bordering on illegality. While special should be verified by an independent commission, at least in efforts were made to keep these two individuals in prison, those cases where officials have come under intense public others were released in mid-May 2003, and their file was scrutiny and have been the subject of numerous accusatory resent to the courts to be heard again by two judges. When press reports. Even basic verifications contrasting the questioned about the reasons for ignoring the law, judges information provided in the declarations with the information argued that they did not receive the text of the anticorruption included in the Commerce Registry and other official bill before hearing the cases. Blame for the failure to documents could prove useful and cost effective. In order to distribute the text of the law was shifted from the Justice follow the spirit of the law, declarations must be submitted Ministry to the General Prosecutor’s Office. both at the beginning and at the end of the mandate to allow These new developments speak for the tenuous for the assets to be compared. Further, inherited assets must relationship between the Anticorruption Prosecutor’s Office be clearly identified alongside salaries and benefits obtained and the broader Romanian court system. For the anti- while in the public office, for an analysis of assets from corruption campaign to be successful, the Office has to undeclared sources to be seriously undertaken. Again, the identify and arrest corrupt public officials and the judges end goal of asset disclosure is not to find out how rich or must know the law if the accused are not to be let off the hook on mere technicalities. In addition, the legislation governing the Office must be improved to observe the

separation of powers principle and allow the anticorruption 59 The scandal surrounding Minister of European Integration is a case is point. In August 2003, the press revealed that two prosecutors to be nominated by the Supreme Council of the companies controlled by Puwak’s son and spouse obtained preferential Magistrates instead of the Justice Ministry, and to relax the contracts worth a total of 150,000 Euros as part of the European Union professional criteria for hiring anticorruption personnel in “Leonardo da Vinci” program. After Romanian journalists were quick to order to increase the number of prosecutors and police label this situation conflict of interest, a special European Union fact- officers and bring their workload to acceptable levels. A true finding delegation was dispatched to Bucharest. Despite protests from the opposition and civil society, Puwak refused to step down, and the ruling separation of powers might also give the Office a new Social Democrats continued to support her. 61 62 impetus for tackling the hard cases of corruption involving corruption legislation and punishing the perpetrators. Passing high-ranking politicians. legislation that provides for no real sanctions and includes Even more important is the fact that the anti- unlimited lists of exceptional cases, and allowing high- corruption bill covers only a limited range of cases of ranking politicians to use their influence to avoid prosecution corruption. As such, even if the law were to be fully undermines the anticorruption campaign and sends the implemented forms of corruption not covered by the current message that the government’s efforts are directed more legislation would continue to go unpunished. Since mid- toward pleasing the international community and the foreign 2003 timid steps have been taken to address this issue. In governments than toward addressing the real issue of early September, a governmental ordinance banned corruption. As always, the success of the anticorruption Parliament members to act as defense councilors in cases campaign rests with both the adoption and the related to corruption and criminal charges. Denounced by the implementation of crucial legislation. mass media, the Romanian public and the international organizations, the practice had not been eradicated because the house consistently refused to consider such proposals. Dr. Lavinia Stan is an Assistant Professor of Political This allowed some Parliament members to provide legal Science at St. Francis Xavier University, Antigonish, Nova counsel and to defend notorious criminals, while at the same Scotia, B2G 2W5, Canada. E-mail: [email protected] time using their influence to persuade the legislators to adopt proposals favorable to them and their clients. Though bitterly criticized for casting a shadow on the legal profession itself, the ordinance included no sanctions, an oversight which reduced it to a mere recommendation. The ordinance banned future association between Parliament members and perpetrators, but did not ask for already established contracts to be terminated. Further, the ban applied only to representation in the lower courts, but not in the Court of Appeals or the Supreme Court of Justice, where the definitive verdicts are in fact handed down and presumably the need for undue influence is greater as the stakes are higher. Lenient as it was, the ordinance received a cold shoulder from the Chamber of Deputies specialized committees, which rushed to make it even less restrictive. The need to approach the phenomenon of corruption holistically in order to identify the areas requiring the adoption of new legislation, to root out the numerous legislative loopholes and to make the different pieces of legislation accord with each other is accompanied by the need to take concrete steps for implementing the anti- 63 64