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WCC in ‘20s Romania – updates and developments

General Outlook

After celebrating 30 years since the fall of communism, Romania is more than ever committed to Europeanism and to modernising its institutions and overall administrative procedures. The Justice system is no exception, since it has become, especially in the last decade, a central focus of the entire society after the accelerated development of the fight against corruption and its influential outcomes, especially regarding the high-profile criminal cases, investigations and trials, which have influenced to a great extent the political, social and economic progress of the country.

The changes of the Criminal Codes and of the Criminal Legislation

Since the enforcement of the current Criminal Code and the Criminal Procedure Code back in 2014, following a more and more divided political system and thinking in relation to numerous judicial matters and legislation issued by the Parliament or Government, the Constitutional Court has assumed a very active and intense role in verifying the constitutionality of many legal institutions that were thus created or modified. In addition to this, the High Court of Cassation and Justice issued numerous rulings (case-law or legally binding decisions) that had the purpose of unifying the practice and clarifying the divergences in interpretation. However, these created serious changes in the application of some legal institutions and generated a lack of predictability for the citizens and companies alike.

The Constitutional Court issued a series of Decisions which made a great impact on the judiciary system, such as the decision by which the procedure of assignment of judges in the Panel of 5 Judges of the High Court of Cassation and Justice (the highest criminal panel of judges in Romania) was declared unconstitutional. Due to this decision, many persons who were previously convicted by this panel criticised the decisions with extraordinary appeals, the execution of penalties being suspended during this time. This led to an extremely controversial move by the High Court of Cassation and Justice in the "Bute Gala" case, when the judges decided to formulate an official questioning of the European Union Court of Justice in order to pronounce a Preliminary Decision by which to decide, among others, if the Constitutional Court should be able to decide upon the organisational norms of the High Court.

More recently, the regular panels of three judges within the High Court of Cassation and Justice (competent to judge as first court in high-level corruption cases) were criticised during the trial of former PM Liviu Dragnea as having been set up illegally (as the legal provisions stated that corruption crimes should be judged by specialised panels), which had been neglected or overlooked even at the level of the High Court. Again, the Constitutional Court was called upon to decide and it ruled in favour of the claim of unconstitutionality, considering the procedure of formation of these panels as unconstitutional. This decision had the power to cause a judicial earthquake in thousands of files judged by the High Court, which could have been revised as a result of having been ruled upon by illegally created courts; however, the Constitutional Court also ruled that this decision will be applicable only in ongoing or future cases, thus weathering the otherwise expected criminal procedures storm.

Relevant Developments in the Courts of Law

The tumultuous and complex background of legislative and institutional changes in the criminal justice system, as the Chief Prosecutors have been regularly changed, each of them with specific strategies and programmes, created or amplified the context in which certain developments took place and influenced, one way or another, Romanian society itself, including relevant court cases with extremely significant political consequences.

The criminal conviction of a few high-profile public figures both shocked and pleased the public's opinion, depending on their political orientation: Mrs Alina Bica, former Chief Prosecutor of the Directorate for Investigating Organised Crime and Terrorism, who was convicted to four years of imprisonment for the crime of aiding and abetting a perpetrator; the former mayor of Constanta, Mr Radu Mazare, who has several ongoing files and also a definitive conviction for financial and corruption crimes of ten years of imprisonment; Mrs Elena Udrea, former Minister of Development and Tourism, who was convicted to six years of imprisonment for receiving bribes and abuse of office. All three fled the country prior to the final decision and flew to exotic locations, where they believed that the extradition process would not be possible – Mr Radu Mazare went to Madagascar, while the two ladies tried to obtain political asylum in Costa Rica.

However, the most significant is surely the (second) conviction, for a total of three years and six months of imprisonment, of Mr Liviu Dragnea, former President of the Chamber of Deputies and President of the Social-Democrat Party in Romania (the party which politically controlled the Parliament and appointed the government at that time), a power-player of the political life of Romania and also a very likely candidate for the November 2019 presidential elections.

In contrast with these convictions, the same period was characterised by many acquittal solutions in case files that were previously presented by the National Anticorruption Directorate as being great victories when sent to court. Among them are the former Constitutional Court Judge, Mr Toni Grebla, accused of corruption; the former President of the Senate, Mr Calin Popescu Tariceanu, the ALDE party president, accused of false testimonies; the leader of the National Liberal Party, Mr Ludovic Orban, currently Prime Minister, accused of corruption; several High Court section presidents and judges, including the current President of the High Court of Cassation and Justice since July 2019, Mrs Corina Corbu, accused of influence peddling; the former Prime Minister and current Pro Romania party president, Mr Victor Ponta, and the former Minister of Transportation, Mr Dan Sova, who were cleared (although this is not final yet) of accusations of corruption in relation to legal consultancy contracts. Moreover, other high-level cases ended in definitive acquittals for some of the defendants, such as the illegal restitution of property case of (amongst others) the former Minister of Justice, Mr Tudor Chiuariu, with charges amounting to EUR 330 million, or the case regarding the National Agency for the Restitution of Property, which comprised patrimonial prejudices evaluated by the accusation at EUR 90 million, in which the former President of the National Agency for Integrity (member of the Board of NARP at the time) was fully cleared, after being convicted in first court and arrested during the criminal investigation phase.

A huge public scandal occurred when numerous secret co-operation protocols concluded between the Romanian Intelligence Service and justice system main actors (the High Court of Cassation and Justice, the Prosecutors' Office with the High Court, NAD, DIOCT, the National Agency for Integrity, the Agency for Fiscal Administration and other central public institutions) were made public after being officially dismissed and denied by the relevant signatories for several months. The protocols stipulated, briefly, that officers from the Romanian Intelligence Service would help and co-ordinate directly the judges, the criminal investigation bodies or the other officials in their activity, even though the Romanian Criminal Procedure Code or other specific legislation expressly prohibited such powers or competences. After the public scandal related to these protocols was submitted to its analysis, the Constitutional Court declared these protocols unconstitutional and therefore demands for annulling the illegal evidence thus obtained (or the trials themselves) began to be formulated in all case files in which it turned out that the Romanian Intelligence Service was involved in the criminal investigations (especially with wire-tappings or other secretive investigative procedures).

The statistics of the National Anticorruption Directorate released at the beginning of 2020 (which presented a staggering 52% rate of acquittals for 2019) show an immense lack of efficiency of this special investigation body after the numerous changes in the legislation and jurisprudence which put an end to their otherwise unsanctioned accusatorial abuses. On this topic, important changes are still to be expected in their activity for the future, with an increased attention to the procedural rights of the investigated persons.

Trends for the Future

It appears that the Romanian investigation authorities are intensively continuing the fight against tax evasion and money laundering resulting from economic crimes, hopefully in a more efficient matter, which to include a shift of focus to the payment of the prejudice rather than to the imprisonment of the perpetrators. AML measures are to be taken, as the legislation is fresh and the Romanian National Bank released information about the investigation of 16-17 banks for involvement in a transaction suspected as money laundering.

After the current pandemic crisis will be over, it is very likely that the Prosecutors' Offices will begin to investigate the undertaken measures during this period and will continue their fight against corruption and economic crimes likely to have happened in these months of multi-million euro direct-purchase contracts. Additionally, the general public strongly believes that internationally owned private companies acting in Romania are overlooked by criminal investigation bodies or tax authorities so this might be yet another area in which some relevant developments might occur.

In parallel, the courts of law (from the bottom to, especially, the top) are expected to deliver solutions in many important or highly scrutinised criminal files. The current trend of acquittals may be maintained to a significant extent, especially in corruption cases which were investigated starting a few years ago, at a time when procedures counted for less than the need to publicly display convictions or people officially charged with corruption, possibly even handcuffed.

The justice system and the public alike hope for the best yet practice showed us, lately, that sometimes expectations are not fulfilled when most expected. However, the worst should no longer be an option, as to revert to the old saying, even if in between these two options is an infinity of possibilities and developments. Only time will tell but, in principle, the official direction is that of modernisation, democratisation and, generally, the rule of law.