Cooperation and Verification Mechanism visit, 14 March 2018 – Talking Points

Pe 14 martie, am participat la întâlnirea cu reprezentanţii Comisiei Europene din cadrul misiunii de evaluare la Mecanismului de Cooperare şi Verificare (MCV). Mai jos, documentul prezentat de Elena Calistru, care a reprezentat Funky Citizens la întâlnire, cu punctele de interes atinse în discuție.

Funky Citizens currently implements several projects with a direct focus on the benchmarks of the Cooperation and Verification Mechanism. Whilst all the benchmarks are interrelated, we believe that the results of our projects and the lessons learnt can be structured for each benchmark. However, some general remarks should be made:

• The continuous political instability strongly affected not only the work of the institutions engaged in the reform of the judiciary and the fight against corruption, but also the general climate of dialogue between the government and the civil society
• Protests continued and there is a sense of general distrust in the actions of the current ruling coalition when it comes to the changes to the justice legislation and the criminal codes; at this point, no changes to the legislation in the field can ignore the need of the Romanian society for transparency
• Several initiatives that either seek to contain the activities of civil society organizations or the freedom of expression are announced; in such a climate, there is a strong sense that illiberalism can become a growing trend for Romania, similarly to other countries in the region

Benchmark one: Judicial independence and Judicial reform

Following the challenging of their constitutional compliance, the Constitutional Court decided that the laws of justice, in the form adopted by the two chambers, contain provisions contrary to the Constitution of Romania, so that the three laws will return to the Parliament. This implies that the parliamentary procedure will be resumed, including the possibility of a new challenge to the Constitutional Court, of a request for re-examination by the President or his referral to the Constitutional Court. We believe that, at this moment, the Parliament of Romania, as well as all stakeholders with a role or interest in justice, are called upon to consider the following elements when it comes to the laws on the justice system:

• The provisions declared unconstitutional – the decisions of the Constitutional Court must be observed and the legislation aligned with the arguments based on the reasons given by the judges in their support, as well as from the separate opinions expressed therein
• The provisions with questionable relevance – legislation should not only observe constitutional norms, but also provide solutions to improve the justice system as a public service for citizens
• Compliance with the parliamentary procedure and consultation of all relevant stakeholders – the legislative path must be in line with regulatory requirements, and debates with field professionals should no longer generate the dissatisfaction from 2017

The proposed amendments to „the laws of justice” need time and patience to gather the views of all those involved and affected. If tacitly and leisurely organized so as to provide opportunities for participation to all those interested, the debate on projects of modification reveal topics, risks or benefits that could have escaped from the initiators’ attention. For these reasons, the adoption of the „laws of justice” in the „accelerated” emergency procedure proved to be a legislation failure with harmful effects on the justice system. Strong and solid public policies cannot be achieved urgently.

Benchmark two: Integrity framework and the National Integrity Agency

Some of the recent attempts to change the legislation on the NIA, as well some of the decisions of the Constitutional Court are expected to challenge even more the capacity of the institution to tackle effectively cases that are under their jurisdiction. The main developments regard thus:

• The continuous attempts to cut the scope and timeframe for the cases in which the Agency should conduct its investigations
• The lack of capacity to conduct financial investigations in order to fulfill its responsibility in evaluating the assets of officials

Benchmark three: Tackling High-level corruption

The past three months were marked by an assault on the legislative and institutional framework related to the fight against high-level corruption. These attacks are expected to continue, both at the level of the government and through legislative measures. The most important challenges are related to:

• Changes to the criminal legislation – the special parliamentary committee has proposed several amendments to criminal and criminal procedure codes under the pretext that they transpose EU Directive 2016/343; the amendments are wider than the need to transpose the European legislation and, if adopted, can severely affect the fight against corruption
• Attempts to change the chief prosecutor of the National Anticorruption Directorate – the Minister of Justice proposed the revocation under an evaluation which is highly questionable at least in some points; even though the Superior Council of Magistracy gave a negative vote to it and the President is expected to reject this proposal as well, several signals show that this decision will be challenged at the Constitutional Court
• Assets recovery – the capacity of the institutions that need to recover the assets, and especially of the Tax Authority, is still very weak; the annual reports of the DNA and of ANABI show that little progress was made in this direction; moreover, the transposition of the Directive 2014/42 is still incomplete
• Money laundering – Romania is under an infringement procedure related to the transposition of the 4^th AML directive and does not seem to make any important progresses in this regard; this area is of particular importance for the fight against high level corruption and there is the risk to have a legislation that doesn’t take into account an honest risk & vulnerabilities assessment

Benchmark four: Tackling Corruption at all levels

Several changes related to the fiscal legislation and numerous exceptions introduced in the public finance legislation make the local administration particularly vulnerable to corruption related to public spending. The ruling coalition also announced the intention to operate changes to the public procurement legislation, an area in which there is a great need for transparency. The most important challenges related to this benchmark are:

• The everchanging legislation provides not only instability but also a strong dependency to central level which, in turn, leads to clientelistic allocation of funds to local authorities
• Public procurement in areas like the health sector or EU-funded projects has a high risk of corruption, especially when local authorities have no incentives to spend in a transparent manner public funds; the payment of financial corrections from the central budget, the possibility to contract debt for the daily spending or the growing trend of setting up municipal companies are just two examples of a very weak fiscal discipline and present a high risk of corruption