LÄNDERBERICHT Konrad-Adenauer-Stiftung e.V.

RULE OF LAW PROGRAM SOUTH EAST EUROPE DR HOLGER DIX BOGDAN COPIL The Current Status of the Roma- 2 July 2010 nian National Integrity Agency www.kas.de/rspsoe www.kas.de TIMELINE AND DEVELOPMENTS

Background to be accompanied by the information and proofs which sustain the request. In cases The recommendation for implementing an which imply ANI personnel, the requests are effective mechanism for wealth control al- submitted to the National Council for In- ready existed in the common position do- tegrity1. cument on the field of justice and internal affairs, prior to the Romanian access to the If an unjustified wealth was discovered European Union (EU). As a direct conse- (with a difference of at least 10.000 EUR quence of these recommendations, comba- between the value of the wealth and the ting corruption through administrative official incomes), the integrity inspectors means became one of the objectives of the had to file a case to the court, asking for National Anti-corruption Strategy 2005- the seizure of the illicitly gained wealth. As 2007. a complementary penalty, for a three years period, the accused person is forbidden to Thus, in May 2007, the National Integri- exercise any public function. In the case of ty Agency (ANI) was created (see Law no. conflicts of interests, any juridical act which 144/2007). This has led to become was signed, with the infringement of the law the first European country to create a speci- is declared null. Also, among the sanctions alized institution to check wealth, conflicts following an investigation by ANI are the of interests and incompatibility issues. It disciplinary actions, which can lead up to has to be noted that even though wealth dismissal from the public function. Again, declarations were mandatory since 1996, and that these declarations became public documents in 2003, the control mechanisms were difficult to implement. More over, the conflicts of interests were never systemati- 1 The National Council of Integrity (CNI) is the cally controlled. body that supervises ANI’s activity and is also re- gulated by Law 144/2007. CNI members are ap- ANI was regulated as an autonomous admi- pointed by the Senate for a period of three years nistrative authority, benefitting from opera- and they represent the parliamentary groups in tional independence. The management of Senate, the minority group in the Chamber of de- the Agency can not require and can not be puties and a number of administrative bodies. The required for any dispositions from any pub- main attributions of the CNI are: proposes the lic authority, institution or person. president of ANI and his/her dismissal; analyzes the reports and briefing notes submitted by the ANI can start an investigation either on the ANI and provides recommendations regarding basis of a physical or juridical person’s re- ANI’s strategy; analyzes the annual audit report quest, or on the request formulated by the regarding ANI’s activity; reports to the Senate president of the Agency. All requests need about ANI’s activity any time it deems necessary.

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Konrad-Adenauer-Stiftung e.V. the interdiction to exercise any public func- the date of its decision, they were not in- tion for three years is implemented. formed about any investigation. RULE OF LAW PROGRAM SOUTH EAST EUROPE In the interim report from March 2010 of Traian Basescu, the President of Romania, DR HOLGER DIX the European Commission to the European took an active role in the whole scenario. BOGDAN COPIL Parliament and the Council on Progress in After declaring that the Constitutional Court Romania under the Co-operation and Verifi- exaggerated with its decision, on the 26th 2 July 2010 cation Mechanism (CVM), it was noted that of April he convokes the political parties for the progress of the National Integrity Agen- discussions on the situation generated by www.kas.de/rspsoe cy (ANI) has been consolidated and exten- the CCR decision on the unconstitutionality www.kas.de ded. Its results are clearly stated: “From 22 of certain provisions of the Law of Organiza- May 2009 to 4 January 2010, ANI finalized tion and Functioning of National Agency for 769 verifications and referred 174 additional Integrity. He urges the political parties to files to competent institutions to apply sanc- adopt a new law for ANI in 10 days, a law tions or pursue criminal investigation. Of which would comply with the requirements these 174 files, two files have been sent to of the Constitutional Court. At the same the courts to confiscate unjustified wealth time, the Romanian president ensured the 60 files to disciplinary bodies to sanction European authorities that Romania will ANI's findings of incompatibilities or respect its commitments and will have a conflicts of interest, and 112 files have been functional agency that can control the referred to prosecutors to investigate suspi- wealth of dignitaries and undertake investi- cions of false statements or other crimes. gations. As of 22 February, sanctions have been ap- plied by disciplinary bodies in eleven cases The Minister of Justice, Marian Predoiu re- concerning incompatible officials.” The acted just as harsh, criticizing the decision Commission report praised the progress in of the Court. In his opinion, “the legal and ANI’s work, but its results had still to be constitutional operation of the National confirmed. Agency for Integrity is essential to fulfilling the commitments assumed by Romania in Recent changes the accession to the European Union, the Cooperation and Verification Mechanism”. Following an unconstitutionality complaint Even before the reasoning of the Constituti- during a trial involving an investigation by onal Court was published, the Ministry deci- ANI, the Romanian Constitutional Court ded to create a working group on this issue, declared, on the 14th of April, that certain trying to establish a new legal framework articles of the Law 144/2007, regarding the for the functioning of the agency. organization and functioning of ANI are un- constitutional. Among these articles, maybe In the meantime, both representatives of the most important one is article 13, which ANIand the Prime Minister, Emil Boc, de- establishes the attributions of ANI (control- clared that a change in the functioning law ling the wealth and interest declarations, of ANI must be implemented, as the normal identifying and denouncing incompatibilities, functioning of the Agency is imperative. The and also applying sanctions). The main rea- initial solution proposed by Emil Boc, right son that was invoked for this was the fact after the decision of the Court, an emergen- that ANI had attributions beyond the ones cy ordinance, has proven to be useless. The of an administrative organ which made it a reasoning published by the Court clearly quasi-prosecutorial body. stated the fact that the decision can not be changed by an emergency ordinance. According to media reporting, the decision of the Constitutional Court (CCR) came in The proposed solution, on the 26th of April, the same period in which 7 out of 9 judges was a new law project which regulates the from the court were supposedly investigated ANI situation. According to the new law, by ANI. CCR declared, nevertheless, that at there will be two kinds of wealth declarati- ons: public ones and private ones, which

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Konrad-Adenauer-Stiftung e.V. will be gathered by ANI. The integrity in- New vehement reactions came up after the spectors will still be able to seize the Natio- above-mentioned changes. RULE OF LAW PROGRAM nal Agency for Tax Administration (ANAF) declares that through the new law, the poli- SOUTH EAST EUROPE and the Prosecutor’s office. ticians satisfied their own interest to get rid DR HOLGER DIX of the public scrutiny. The American Ambas- BOGDAN COPIL The new draft law stirred up the spirits, dif- sador expressed once again his disappoint- ferent opinions being expressed. Mark Gi- ment regarding the law, considering that 2 July 2010 tenstein, the American Ambassador in Ro- ANI will be substantially weakened. The civil mania, declared, during a debate with law society also took a decisive stance, by re- www.kas.de/rspsoe students, that if he were a parliamentary, questing the President not to promulgate www.kas.de he would not vote for the changes brought the law. in the new ANI law. Monica Macovei, former Minister of Justice, declared she is extreme- Traian Basescu sent the law back to the ly disappointed with the new project: “It's a Parliament, with a review request, on the project that shows contempt towards 2nd of June2. The president is also urging transparency, and towards public opinion in the two chambers of the Parliament to Romania.” adopt the ANI law before the parliamentary holiday. Marian Predoiu also requested the On the 28th of April, the new ANI law was deputies to debate the law regarding ANI voted in the Chamber of Deputies. Being an having in mind the strategic interest or Ro- organic law, in order to be adopted it should mania to consolidate its EU member state meet at least 167 votes. Hence, the law was position. passed only after the second round of vo- ting; in the first one it did not get the ne- On the 22nd of June the Chamber of Depu- cessary number of votes. This happened ties adopted the new form of the law, taking only after the possible seizure of assets was into consideration the review request sent eliminated from the law text. The docu- by the President and his recommendations. ment, adopted by show of hands of deputies Almost all the remarks sent were integrated went to the Senate, which is a decisional in the new draft law. Chamber in this case. On the 27th of June, a day before the law On the 5th of May, the Senate decides to debate in the Senate, the German and Ame- postpone the debate until the decision of rican ambassadors met with the presidents the Constitutional Court is published in the of the superior chamber of the Parliament, Official Gazette. This led to missing the 10 Mircea Geoana, of the Judicial Committee , days deadline proposed by the President. Toni Grebla and of the Human Rights Com- Following this reaction, the decision of the mittee in the Senate, Gyorgy Frunda. The Court is published in the same day. ambassadors have recommended that ANI should not become weaker than before the On the 12th of May, the Senate adopted Constitutional Court decision. the new Law of organizing and functioning of ANI, but only after operating major Once again, during the debates held on the changes. Among these changes, some were 28th of June, the senators eliminated the more visible in the media: the officials that main attributions of ANI, by removing the do not fill in their assets declaration in a amendment which created the commissions correct manner will not be criminally for assets control. Another important chan-

responsible, assets control commissions ha- ve been removed from the law, and jewels and art collections totaling more than 5000 2 According to article 77 of the Romanian Constitu- EUR will remain confidential. The Senate is tion the President of Romania can, before promul- the decisional chamber on this issue. gating a certain law, send it back to the Parlia- ment for reconsideration. He can do that only once

for the same law.

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Konrad-Adenauer-Stiftung e.V. ge was the decrease in the period in which Catalin Macovei, the president of ANI, de- an official can be investigated after the end clares that this decision will have a catas- RULE OF LAW PROGRAM of his mandate from 3 years to 1 year. The- trophic outcome in the European Commis- SOUTH EAST EUROPE se remarks, clearly stated in the review re- sion Report on justice. He is convinced that DR HOLGER DIX quest sent by the President, were dismissed the parliamentarians that voted the law ha- BOGDAN COPIL once again. The final decision needs to be ve something to hide, and Gyorgy Frunda taken in the plenary session of the Senate legislated in his own interest. 2 July 2010 when the results presented by the commis- sions can be accepted or discarded. The same opinion is shared also by Iulian www.kas.de/rspsoe Urban, senator from the Democrat Liberal www.kas.de Wednesday, the 30th of June marked the Party (PDL). He thinks the Romanian parli- change in ANI’s functioning. The law was amentarians have proven once again that voted in the Senate in its modified form, no matter their political color, when it co- disregarding the review request sent by the mes to their own interests, they co-operate. President. Out of the 6 important points re- “ANI was impartial and through its investi- commended by the President, and introdu- gations deranged both persons in power ced in the draft law by the Chamber of De- and from the opposition. So they thought puties, only 2 were left untouched in the how it could be fixed in such a way so they Senate. With an overwhelming number of can be much more relaxed than before. Se- 115 votes for and only 2 abstentions, the nator Frunda played his role and acted in law was adopted in its amputated form. The the name of the whole profoundly corrupted assets control commissions were removed, political class. Unfortunately, the vote pro- and the period in which dignitaries can be ves that PDL was situated on the same side investigated was reduced from 3 years to as the National Liberal Party (PNL) and the only 1 year after the end of their mandate. Social Democrat Party (PSD). The Parlia- Jewels, precious metals, art collections, as mentarians have no excuse for the fact that well as objects from the national and uni- today, the President’s request was rejected versal cultural patrimony which have a big- in the Senate, and ANI was buried”. ger value than 5000 EUR do not need to be included in the public declarations. Another Gyorgy Frunda, the president of the Human important point which was removed from Rights Committee in the Senate, the same the law is the requirement to declare any person who introduced most of the negative contract financed by public money, signed changes in the ANI law on the other hand, by themselves or their close relatives. was offended by the way everybody seems to mix in the work of the Senate. He accu- The reactions stirred by this vote are mixed. sed both Catalin Macovei and Horia Catalin Predoiu, the Justice Minister, decla- Georgescu (ANI secretary-general) for their res this decision will be noted as a weak behavior. He also accused the intervention point in the Country Report under the CVM. of the Ambassadors. He declares: “I believe On the other hand, even though this law is a sovereign Senate of a EU member state not what everybody was expecting, it is an can not accept a political pressure, a psy- improved version of the first draft which chical pressure at the decision making level. was voted in the Senate immediately after I do not recall any Romanian ambassador to the CCR unconstitutionality decision. He al- require for a certain Parliamentary decision so expressed his hope for an increase in ANI to be taken in Holland, Germany, USA.” attributions through the Code of Integrity that is expected to be voted in autumn. Perspectives

Mark Gitenstein has once again publicly ex- While the final version of law adopted by pressed his disapproval of the new law, the Senate was unsatisfactory for many stating that it limits the powers of ANI more politicians and civil society representatives than the Constitutional Court requested. as well, new ideas come into play. Certain The Ambassador’s interventions were not parliamentarians talk about a possible new however taken lightly by the senators. ANI law, as well as of a Code of Integrity,

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Konrad-Adenauer-Stiftung e.V. gathering all legal documents on the topic. With the European Commission report ex- RULE OF LAW PROGRAM pected in August, the activity of ANI and the SOUTH EAST EUROPE legal framework regulating its activity seem DR HOLGER DIX crucial. BOGDAN COPIL

2 July 2010 www.kas.de/rspsoe www.kas.de