Acest site este finanțat prin Mecanismul Financiar Norvegian 2014-2021. Proiect NAS-EVAL. Acest site este finanțat prin Mecanismul Financiar Norvegian 2014-2021. Proiect NAS-EVAL.
1. European and international context
The importance of corruption prevention and combating is highlighted by the inclusion of issues specific to this field in various international legal instruments, both in main sources of law and in programmatic documents.
UNCAC is a multilateral international anti-corruption treaty. The international instrument was negotiated by UN member states, was adopted by the UN General Assembly in October 2003 and entered into force in December 2005. The Treaty recognises the importance of preventive and anti-corruption measures and uses a cross-border approach to corruption, including through provisions on international cooperation and confiscation of proceeds of corruption. The UN Office on Drugs and Crime (UNODC) in Vienna serves as the UNCAC secretariat. UNCAC’s goal is to reduce various types of corruption that can occur across country borders, such as trading in influence and abuse of power, as well as corruption in the private sector.
RO actively participates in the second cycle of the UNCAC review mechanism, both as a reviewer country state and as reviewed country. RO was appointed reviewer for Dominica and the Dominican Republic.
At the same time, RO was reviewed in the fourth review year of the second cycle; the review of country implementation of the UNCAC started on June 19, 2019. The RO review is conducted by two States Parties to UNCAC, the Slovak Republic and Afghanistan, according to the Terms of Reference of the UNCAC Review Mechanism.
OECD is an intergovernmental organization that aims to develop economy and international trade. The cooperation between Romania and the OECD in the field of the fight against corruption is mainly managed by the Ministry of Justice (hereinafter referred to as MoJ), more specifically, through collaboration with the following working formats:
ACN supports Member States in their anti-corruption reform efforts, in particular in the implementation of anti-corruption measures and in the effective enforcement of anti-corruption laws.
Romania actively participates in the ACN through representatives of the MoJ, the National Anti-Corruption Directorate (hereinafter referred to as DNA) and the National Integrity Agency (hereinafter referred to as ANI) and holds the position of Chair of the ACN Law Enforcement Network (hereinafter LEN). Romania has been a member since 2000.
Established in 1994, WGB is responsible for monitoring the implementation and enforcement of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and the Recommendation of the Council for Further Combating Bribery of Foreign Public Officials in International Business Transactions. WGB’s peer-review monitoring system is conducted in successive phases and is considered to be the “gold standard” of monitoring.
MoJ participates in this format as a guest.
SPIO is an OECD working format that enables the exchange of information and best practices between government experts from OECD Member States involved in the management of conflicts of interest, promoting transparency and integrity in the public sector, and accountability through internal and external control mechanisms. The main objectives of SPIO are:
This working format is managed by the OECD Directorate for Public Governance, and the Ministry of Justice provides liaison with this OECD working format since 2019.
Romania has been a participant in the DAC since 2018.
The Network of Corruption Prevention Authorities (Šibenik Network) is an international network of relevant public authorities in charge with corruption detection and prevention, aiming to promote the systematic collection, management and exchange of information and good practices among such authorities, in partnership with relevant international institutions, such as the Group of States against Corruption (hereinafter referred to as GRECO). Romania signed the declaration in 2018 at the High-level Conference on Strengthening Transparency and Accountability to Ensure Integrity: United Against Corruption, hosted by the Croatian Presidency of the Committee of Ministers of the Council of Europe (hereinafter CoE), GRECO and the Ministry of Justice from the Republic of Croatia.
From a European perspective, the Criminal Law Convention on Corruption was adopted in Strasbourg on January 27, 1999, under the auspices of the Council of Europe, and entered into force on July 1, 2002; it was ratified by Romania by Law no. 27/2002. Also, the member states of the Council of Europe and the European Community adopted in Strasbourg on November 4, 1999 the Civil Law Convention on Corruption, which defines in Art. 2 “corruption” to mean “requesting, offering, giving or accepting, directly or indirectly, a bribe or any other undue advantage or prospect thereof, which distorts the proper performance of any duty or behaviour required of the recipient of the bribe, the undue advantage or the prospect thereof”.
In the field of anti-corruption, the European Union (hereinafter referred to as the EU) has consistently emphasized the importance of legislative reforms and of the relevant institutional framework, either by adopting special anti-corruption legislation or by setting up specialist structures to investigate and prosecute corruption.
The Treaty on the Functioning of the EU (hereinafter referred to as the TFEU) states that corruption is an area of particularly serious crime with a cross-border dimension [art. 83 (1) of TFEU]. According to the EU Anti-Corruption Report, corruption a phenomenon that costs the European economy around 120 billion euros per year, and over 69% of Europeans consider corruption unacceptable.
NAS implementation was monitored by COM under the Cooperation and Verification Mechanism. The Commission’s assessments, expressed in the monitoring reports during the last strategic cycle, have highlighted the importance of NAS as the main tool to encourage the prioritization of preventive measures adopted by the public administration, both at national and at local levels (2016 Report).
NAS has also been recognised as a tool with the potential to become an effective anti-corruption policy if properly implemented and monitored in the field (2017 Report).
The COM recommendations have always focused on the importance of the political support for the NAS implementation process. Thus, in the same report cited above, the COM considered that given that the implementation of the anti-corruption strategy has been launched at a technical level, it now needs visible political support from the Government and local authorities to make progress, as has been the case with the implementation of the initial strategy, when efforts have been made to disseminate good practices and to encourage public bodies to allocate resources and pay attention to the fight against corruption. Ministers in charge of central public administration and ministers in key sectors such as education or health could play a particularly important role.
NAS implementation has made steady progress during the 4-year period. Last year, further progress was made on the National Anti-Corruption Strategy (2018 Report).
The political support for the NAS implementation, coupled with efforts to ensure the sustainability of measures and the irreversibility of the fight against corruption, appear to be the main goals expressed by the COM in achieving this benchmark. Corruption prevention is hampered by political developments, which undermine the credibility of progress and further efforts are needed (2019 Report).
Romania ratified several international anti-corruption instruments, as follows: The United Nations Convention against Corruption, the Council of Europe Criminal Law Convention on Corruption and Civil Law Convention on Corruption.
GRECO was established in 1999 on the basis of an enlarged partial agreement of the Council of Europe, open to the member states of the organisation and to the countries that contributed to the work of the Multidisciplinary Group on Corruption; Romania has been a GRECO member since its establishment. Its aim is to improve the capacity of its members to fight corruption, by monitoring compliance with the Anti-Corruption Guidelines as adopted by the Committee of Ministers of the Council of Europe on 6 November 1997. GRECO also monitors the implementation of international legal instruments adopted following the Anti-Corruption Action Program.
In 2019, the Ministry of Justice initiated proceedings to join the Network of European Integrity and Whistleblowing Authorities (hereinafter referred to as NEIWA).
The goal of joining this format was reached in 2020, and this approach provided a favourable context for strengthening cooperation at European level between the relevant national authorities in the field of integrity.
NEIWA was established in the Hague in May 2019 on the initiative of the Dutch Whistle-blowers Authority, with a view to exchanging good practices in the field of integrity.
Among the benefits derived by MoJ from its capacity as a member, and from its participation in the activities and the meetings organised by this network, we mention the exchange of best practices in the field of integrity, in general, and of whistle-blowers in particular. So far, the network has proven a good opportunity for mutual learning to strengthen the protection of whistle-blowers.
RAI was established in Sarajevo in February 2000, under the name Stability Pact Anti-Corruption Initiative (hereinafter referred to as SPAI), an organisation that aims to prevent all forms of corruption. In October 2007, following a decision of the Member States, the Stability Pact Anti-Corruption Initiative became the Regional Anti-Corruption Initiative, after the Stability Pact for South-Eastern Europe was superseded by the Regional Cooperation Council (RCC). RAI includes 9 member countries from the region, more specifically: Albania, Bosnia and Herzegovina, Bulgaria, Macedonia, Montenegro, Republic of Moldova, Romania and Serbia, and three observers: Poland, Georgia and Slovenia.
RAI takes a multidisciplinary approach to fighting corruption, incorporating issues: the adoption of international legal instruments, strengthening the rule of law, promotion of transparency and integrity in business operations and development of an active civil society. At the same time, it provides all its partners with a general framework for coordination, optimization of effort and permanent dialogue with the donor community.
MoJ’s engagement in RAI means active participation in the regular meetings of the Steering Committee, hosting and organising Summer School events for young magistrates, participation in RAI events to disseminate good anti-corruption practices developed in Romania.
2. National Context
The preventive policies promoted by the strategy cover a wide variety of aspects, with a view to create a culture of integrity; the strategy is harmonised with all international anti-corruption instruments to which Romania is a party (MCV, GRECO, UNCAC, RAI).
To this effect, NAS brings together institutional transparency and corruption prevention measures regulated by various normative acts regarding: the code of ethics/deontology/conduct, ethics advisor, declaration of assets, declaration of gifts, conflicts of interest, incompatibilities, transparency in the decision-making process, access to information of public interest, protection of whistle-blowers, post-employment restrictions (revolving doors), sensitive positions, integrity risk management and ex-post assessment of integrity incidents.
2.1. Institutional transparency and corruption prevention measures
I. Code of ethics/deontology/conduct
Ethical values and generally accepted principles of conduct are incorporated into codes of conduct. In general, a code of conduct is a set of rules voluntarily adopted by the target group and it does not necessarily provide for specific sanctions in case of breach of rules.
Codes of conduct may target a wide variety of groups or institutions, from professional categories to companies or public institutions.
II. Ethics Advisor
In order to comply with and monitor the implementation of the principles and norms of conduct by civil servants, the heads of public authorities and institutions shall appoint an ethics advisor, a civil servant, usually from the human resources department [Art. 451 (1) of the Government Emergency Ordinance no. 57/2019 on the Administrative Code, as further amended and supplemented]. The Ethics Advisor shall play an active role to prevent breaches of the norms of conduct pursuant to the provisions of Art. 452 of the Government Emergency Ordinance no. 57/2019 on the Administrative Code, as further amended and supplemented.
Public authorities and institutions also have the obligation to coordinate, check and monitor compliance with the norms of conduct by own employees, or by those of institutions under their subordination or coordination, pursuant to the provisions of the labour law and of other relevant applicable legislation - Art. 558 (1) of the Government Emergency Ordinance no. 57/2019 on the Administrative Code, as further amended and supplemented.
III. Declaration of gifts
The declaration of gifts is a legal obligation regulated by the provisions of Law no. 251/2004 on certain measures concerning goods received free of charge on the occasion of protocol actions in the exercise of the mandate or function, as well as by the provisions of the Government Decision no. 1126/2004 approving the Regulation on the enforcement of Law no. 251/2004 on certain measures concerning goods received free of charge on the occasion of protocol actions in the exercise of the mandate or function.
IV. Declaration of assets and interests
The declaration of assets and interests is regulated, mainly, by the provisions of Law no. 176/2010 on integrity in the exercise of public office and dignities, amending and supplementing Law no. 144/2007 on the establishment, organisation and functioning of the National Integrity Agency, and amending and supplementing other normative acts, and by the provisions of Law no. 161/2003 on certain measures to ensure transparency in the exercise of public dignity, public office and in the business environment, corruption prevention and sanctioning, as further amended and supplemented.
V. Conflicts of interest
The national legislation, more specifically Law no. 161/2003 on certain measures to ensure transparency in the exercise of public dignity, public office and in the business environment, corruption prevention and sanctioning, defines the conflict of interest as the situation in which the person exercising public dignity or public office has a personal financial interest, which could influence the objective fulfilment of his/her duties as defined by the Constitution and by other normative acts.
The conflict of interests of a criminal nature is defined by art. 301 of the Criminal Code, under the name of use of office to favour certain persons, as the act of the civil servant who, in the exercise of his/her duties, performed an act by they derive a personal benefit either for themselves, for their spouses, for a relative or in-law up to and including grade II,
A conflict of interest of an administrative nature does not necessarily entail an act of corruption. The occurrence of a conflict between the personal interests of a civil servant and his/her legal duties, which has not been resolved or sanctioned, may result in corruption; a conflict of interest may therefore ultimately result in a corruption offence. The resolution of conflicts of interest therefore aims at decision-making solely on the basis of the public interest in the public administration.
VI. Incompatibilities
Incompatibilities are regulated by Law no. 176/2010 on integrity in the exercise of public office and dignities, amending and supplementing Law no. 144/2007 on the establishment, organisation and functioning of the National Integrity Agency, and amending and supplementing other normative acts, and by the provisions of Law no. 161/2003 on certain measures to ensure transparency in the exercise of public dignity, public office and in the business environment, corruption prevention and sanctioning, as further amended and supplemented.
In order to avoid confusions between conflicts of interest and incompatibilities, it is necessary to bear in mind that we have a conflict of interest when public persons make decisions which influence a personal interest; to be placed in a situation of incompatibility, a public official does not have to make any decision, it is enough that he/she simultaneously holds two or more offices whose cumulation is prohibited by law.
VII. Restrictions after employment in public institutions (revolving doors)
The legislation on post-employment restrictions includes provisions contained in various normative acts; there is no unitary regulation in this respect:
VIII. Transparency in the decision-making process
Organisational and decision-making transparency within an organisation is the best tool to discourage and combat abuse and corruption. Law no. 52/2003 lays down minimum procedural rules applicable for decision-making transparency in the central and local public administration authorities, which may be further elaborated according to the specificities of each authority, by developing a procedure concerning decision-making transparency.
IX. Access to information of public interest
Pursuant to Art. 31 (1) of the Constitution of Romania, a person’s right of access to any information of public interest shall not be restricted, and pursuant to the provisions of par. (2) of the same article, the public authorities, according to their competence, shall be bound to provide correct information to the citizens in public affairs and matters of personal interest
Free and unrestricted access to information of public interest is, as stipulated in Art. 1 of Law no. 544/2001, one of the fundamental principles underpinning the relations between individuals and public authorities, pursuant to the Romanian Constitution and to the international documents ratified by the Parliament of Romania.
Therefore, access to information of public interest is a right of each person, which has a correlative obligation on public authorities and institutions to ensure its proper exercise. Thus, any person has the right to request and obtain from public authorities and institutions information of public interest, under the conditions regulated by Law no. 544/2001, and the public authorities and institutions have the obligation to provide, upon request, the information of public interest requested in writing or orally.
X. Whistle-blower protection
Currently, whistle-blower protection is regulated by Law no. 571/2004 on the protection of personnel of public authorities, public institutions and other units who report breaches of the law. This was a result of the need for legal instruments for the self-regulation of the integrity system within the public administration.
2020 brought a new legislative challenge, namely the adoption of Directive (EU) 2019/1937 on the protection of persons who report breaches of Union law, as well as the correlative obligation of EU Member States (MS) to transpose it into national law.
Consequently, the national legal framework will be harmonised in compliance with European standards.
XI. Sensitive positions
According to the definition provided by the Order of the General Secretariat of the Government (hereinafter referred to as OGSG) no. 600/2018, a sensitive position is a position which presents a significant risk of affecting the objectives of the entity due to improper use of human, physical, financial and information resources or corruption or fraud.
Pursuant to section 2.2.6 of Standard 2 - Duties, positions, tasks in OGSG no. 600/2018, the head of the public entity shall order the identification of sensitive positions based on risk factors; they shall be centralised for the entire public entity which shall develop an adequate policy for their management by defining specific measures so as to minimise any negative consequences on the activities carried out within the public entity.
As regards the legal framework, the New Criminal Code, adopted by Law no. 286/2009, which entered into force on February 1, 2014, regulates, under Title V of the Special Part, “Corruption offences and offences in the exercise of a public office”, which is structured in two chapters: Chapter I - “Corruption Offences” (Art. 289‐294) and Chapter II – “Offences in the Exercise of a Public Office” (Art. 295‐309).
Also part of the national legislation which regulates corruption offences, we mention here Law no. 78 of 8 May 2000 on the prevention, detection and sanctioning of acts of corruption.
XII. Corruption risks and vulnerabilities in public administration
Risk management is key in corruption prevention and ensuring a high level of integrity. Corruption risk management within the central/local public administration involves the detection, analysis, assessment and monitoring of corruption risks, as well as the initiation and implementation of actions to prevent and control such risks.
Government Decision no. 599/2018 regulates the Standard Methodology for assessing corruption risks in central public authorities and institutions, together with indicators to assess the likelihood of corruption risks, with impact indicators in case corruption risks occur, and the corruption risk register template. At the same time, this normative act approves the Methodology for assessing integrity incidents in the central public authorities and institutions, together with the template for the annual report on integrity incidents.
2.2. Conclusions of criminological research and sociological research on the phenomenon of corruption
Starting from the need to draft a new strategic document on anti-corruption, the Ministry of Justice in partnership with the General Anticorruption Directorate developed a two-fold scientific survey (criminological research and sociological research) to collect, analyse and interpret data on corruption.
The criminological study aimed to investigate the phenomenon in light of direct experience of persons convicted for corruption offences, serving a custodial sentence in prison or on probation.
The sociological research targeted the perception of the employees of the central public administration on causes and factors related to acts of corruption.
Completed in December 2020, the scientific research involved the use of quantitative (questionnaire) and qualitative (interviews) research methods, and the conclusions were compared to those of the study “Opinions of convicted persons on corruption causes and consequences - Study on corruption in Romania” carried out by MoJ in partnership with the Faculty of Law - University of Bucharest and the Faculty of Law - VU Amsterdam University in 2014-2015.
As regards the legal framework and the public-private organisational context, the criminological survey indicated high tolerance for corruption, justified by the fact that the legal framework sanctions actions with a long history of acceptance and normalisation in society. Bribe giving and taking, trading in influence are offences which cover social practices such as gifts, reciprocity, support and exchange of information within the family, social networks, communities. The results of the sociological research confirm the perception among central administration officials that the main mechanisms enabling the proliferation of acts of corruption in Romania aspects related to the habit of offering something for timely resolution of requests.
As regards personal values and norms, persons convicted for corruption offences place very high value on socially desirable values, namely family, faith, work, social independence. Also, their aspirational orientations belong to the sphere of social affiliation.
In terms of motivations, the convicted persons were involved in acts of corruption for the perceived benefits. However, such benefits are not limited to the financial assets (money or other direct benefits), they cover a wide range of benefits and rewards, including social and symbolic benefits and rewards. The research revealed two types of motivations (sometimes overlapping/combined): the first type of motivation is based on material benefits, more visible in the cases of petty corruption examined, especially in bribe offences. The second type is the social-symbolic motivation, more visible in high corruption cases and classified as different offences, especially trafficking in influence. Another important point: the definitions of facts and motivations for acts of corruption committed are often different for the same people depending on the reference period: pre-conviction or post-conviction.
As regards the manner in which the persons convicted for corruption perceived the opportunities and decided to become involved in such acts, two main types emerged:
Corruption opportunities are also elements of continuity between the two criminological studies (2015 and 2020). Both studies indicate that the perpetration of such incriminated acts was closely linked to the organisational climate, the workplace or the professional life. In practice, the organisational climate, both in the public and private sectors, may encourage and facilitate acts of corruption, just as it can educate and sanction any deviation from integrity rules.
Scientific research also makes important suggestions for enhancing corruption prevention.
As regards the main reasons that would prevent involvement in acts of corruption, the following prevention factors were highlighted: moral values and education (68%), the risk of compromising one’s professional career, job loss (25%) and the fear of being convicted or fear of prison (4%).
The study also highlighted a number of measures which could enhance the effectiveness of corruption prevention measures, including clearer legislation (78% of respondents), encouraging the business community and civil society to report corruption (65% of respondents), civic education (76% of respondents), the digitisation of public services (63% of respondents) and training sessions on workplace integrity (53% of respondents).
The study also includes recommendations to enhance the effectiveness of anti-corruption measures adopted at national level through relevant strategic documents, grouped by intervention levels: education, public information/awareness, organisational culture, and legislation and competent institutions.
3. Problem definition: priority sectors
PUBLIC HEALTHCARE SYSTEM
Healthcare was one of the priority sectors in the National Anti-Corruption Strategy 2016-2020, with a dedicated objective and specific measures.
Substantial efforts and an integrated approach were needed to implement measures in the health sector, taking into account both the specificity and diversity of activities and their scope.
As regards NAS implementation in the healthcare sector, monitoring reports indicate that, while some measures have been implemented since 2016, and are still ongoing, others have remained at an early stage of implementation. For example, the patient feedback mechanism is still operational.
It has been implemented since December 2016, with 253,237 SMS questionnaires and 915,626 web questionnaires processed.
As regards the transparent use of public resources, the actions carried out by the Ministry of Health (hereinafter referred to as the MoH) in recent years focused on the activities under the Open Government Partnership and the National Action Plan. Currently, the MoH published on the single national platform, data.gov.ro, 67 data sets collected both from the level of the institution and from other units under its coordination or subordination. MoH reported developments here, with the number of data sets published increasing from one year to another.
Regarding the establishment of a mechanism for traceability of medicines in the Romanian market, the MoH developed a mechanism for real-time monitoring of medicine stocks at national level. To this end, daily online reporting requirements were introduced for wholesale drug distribution units, authorised importers and manufacturers, as well as for limited-service and open-access pharmacies. This enables the traceability of medicines throughout the distribution chain, from manufacturing to community pharmacy. Public access to information on the stocks for each medicine is ensured on the website of the Ministry of Health (https://ser.ms.ro/access/user).
MoH strengthened its control and integrity structure setting up the Integrity Unit within the Oversight and Integrity Department, a 7-position structure, by reorganizing the Integrity Department, a 3-position structure.
There are also actions where no progress has been made or which are at an early stage of implementation, namely the performance review of the MoH centralised procurement system, as well as the development of a new mechanism to provide financial support for continuing medical education, to eliminate sponsorships provided by the pharmaceutical industry to the medical staff.
Given the importance of this sector, thematic evaluation missions were carried out in MoH and 4 subordinate structures. The conclusions of the thematic evaluation missions showed the need to strengthen the enforcement of legal provisions on the three topics subject to evaluation: declaration of gifts, protection of whistle-blowers and sensitive positions.
As indicated above, TS NAS conclusions show uneven progress in the implementation of the measures in the healthcare sector.
As regards the mechanism for traceability of medicines on the Romanian market, the Ministry of Health, by Order of the Minister of Health no. 1473/2018, created the National Medicines Verification System - a system of directories connected to the European Medicines Verification System (hereinafter referred to as EMVS), pursuant to the provisions of Art. 31 and 32 of the Commission Delegated Regulation (EU) 2016/161 of 2 October 2015 supplementing Directive 2001/83/EC of the European Parliament and of the Council by laying down detailed rules for the safety features appearing on the packaging of medicinal products for human use, implemented and managed by the Romanian Medicine Serialisation Organisation (hereinafter referred to as RMSO) - a not-for-profit private legal entity established pursuant to the Government Ordinance no. 26/2000 on associations and foundations, as amended and approved by Law no. 246/2005, as further amended and supplemented, in charge with the development and management of a national repository named the National Medicines Verification System (hereinafter referred to as NMVS).
NATIONAL EDUCATION SYSTEM
Similar to the healthcare sector, NAS 2016-2020 was the first strategic cycle which included education among the priority sectors, with a dedicated objective and specific measures. Given the diversity of activities and the scope of the sector, the implementation of such measures required substantial efforts and an integrated approach.
An example of such integrated approach is the conclusion of the Collaboration Protocol on legal education in schools between the Ministry of Justice, the Ministry of Education (hereinafter referred to as MoE), the Superior Council of Magistracy and the High Court of Cassation and Justice; based on this Protocol, prosecutors, lawyers, notaries public, bailiffs, legal advisors and mediators visited schools to present topics of legal education of interest to both students and teachers and study visits were organised at the headquarters of institutions participating in the Protocol, including courts of justice.
As regards information on integrity standards, the conclusions of the annual monitoring reports indicated a growing interest in the implementation of measures adopted for this purpose. To this purpose, we mention the measures related to the introduction of basic concepts of law, ethics and civic education in the school curriculum, and the development of university and postgraduate training programmes on ethics and integrity, which showed progress in implementation.
As regards the adoption of a code of ethics for pre-university education stipulating clear prohibitions, aiming at practices such as private lessons given by teachers to students in their own class, this was implemented by the adoption of the Framework Code of Ethics for pre-university teachers, which includes various restrictions and obligations of teachers in their relations with direct beneficiaries of education. The county school inspectorates developed their own codes of conduct, and the Code of Ethics and Deontology is applicable for higher education.
Relevant measures in terms of transparency and integrity of the national and baccalaureate exams, which have been implemented, are represented by the video and audio monitoring of the national competitions and exams organised in the educational system, as well as the setting up of baccalaureate assessment centres, and by the national eighth grade assessment in counties adjacent to those in which the examination took place and the random appointment of the counties for which the assessment is performed, after the completion of each test. At the same time, the video and audio monitoring measures also apply for the Tenure Exam for pre-university teachers.
As regards the measure to introduce a deterrent sanctioning system against plagiarism, as well as the development of a mechanism for warning and early detection of non-compliant behaviours, the National Council for Certifying Titles, Diplomas and University Certificates (hereinafter referred to as CNATDCU) has carried out numerous actions. To this purpose, a list of programmes recognized by CNATDCU and used by higher education institutions organising doctoral studies was approved, in order to establish the degree of similarity for scientific papers (anti-plagiarism software).
The implementation of the measure on the standardised publication of information on revenues, expenditure, public procurement, sponsorships, as well as academic activity at the level of institutions of the public education system/higher education institutions has seen uneven progress at institutional level in terms of compliance with the standard on the publication of information of public interest (Annex 4 to the NAS 2016-2020).
Given the importance of this sector, a thematic review mission was carried out at the level of MoE (and 4 structures under its subordination/coordination/authority); conclusions indicated uneven enforcement of the anti-corruption legislation in the education system, and a need to increase MoE involvement as coordinator of institutions in the Romanian education system with regards to NAS implementation.
The conclusions of TS NAS indicate that the implementation of the measures related to the education sector has registered progress for all sub-measures, nevertheless, there is uneven progress in terms of the involvement of institutions from the Romanian education system. Therefore, the end of this strategic cycle highlights the need to strengthen the capacity to manage the implementation of measures targeting education. Similarly, we recall that one of the recommendations for MoE, following the thematic review mission, was to consider the possibility of developing an Anti-Corruption Strategy dedicated to the national education system.
BUSINESS ENVIRONMENT IN ROMANIA
Similar to the previous anti-corruption strategy, NAS 2016-2020 maintained the business environment as a sector exposed to corruption risks, and the specific objective 3.7. included actions aimed at promoting organisational integrity and compliance within public enterprises and private companies in Romania.
In general, and given the content of the specific objective mentioned above, we note that there have been developments in promoting integrity in the business environment, especially in public enterprises. However, the Romanian business environment has not adopted large-scale international principles and standards on organisational integrity, as initiatives in this field are rather unique or sectoral in nature. In general, we may state that integrity is not a basic principle considered by company management.
Under the measure aimed at collaborating with OECD for this purpose, the Ministry of Justice initiated various actions to promote Romania’s accession to OECD. MoJ has been actively involved in several projects implemented by OECD with other public institutions in Romania. Thus, the number of working formats in which the MoJ is actively involved has expanded, with activities carried out with the following working formats: SPIO, ACN, ACTT AND WGB.
Following continuing efforts by MoJ, the implementation of the technical assistance project on the compliance of Romanian legislation with the provisions of the OECD Anti-Bribery Convention was initiated in 2020. This activity represents a roadmap stage that must be implemented by Romanian authorities in order to become a WGB member. The project ongoing, and in included the submission of detailed documents on the Romanian criminal law and criminal procedure legislation and on the practices of relevant courts. At the same time, MoJ facilitated the organisation of interviews between OECD evaluators and the public sector, practitioners, the business community, civil society and academia.
Compared to 2016, we appreciate that the integrity plans developed by public enterprises capture more accurately the organisational context and consider the implementation of various standards relevant to the type of activities carried out. In this context, the Ministry of Justice found that public enterprises no longer look only at practices in the public sector, but began to adopt good practice examples from the private business environment. Thus, it was possible to note cases of outsourcing of services (for example - the complaint resolution mechanism for complaints submitted by whistle-blowers) or obtaining international certifications (Anti-Corruption Standard ISO 37001).
MoJ has been involved in various activities with a view to promote dialogue and cooperation between the public sector and the business environment, as follows:
The cooperation platform brings together representatives of private businesses, public enterprises and some of the authorities which have state-owned companies under their subordination. The discussions allowed for the communication of relevant information between the public sector and private businesses.
In conclusion, the implementation of this specific objective has progressed, both due to the efforts made by MoJ, but also to the interest shown by private businesses and by certain public enterprises in promoting business integrity. This strategy explores how business integrity initiatives can be promoted and assumed at a larger scale by the private sector.
PUBLIC PROCUREMENT
As regards the field of public procurement, we find that most of the measures provided by the specific objective 3.6. of NAS 2016-2020 were implemented by the relevant institutions. However, the field of public procurement remains exposed to corruption risks in terms of access to financial resources. At the same time, the COVID-19 pandemic exposed the vulnerabilities in the system, especially with regards to the procurement of medical equipment, medicines and protective equipment.
An important role in promoting the anti-corruption agenda in this field is played by the National Agency for Public Procurement (hereinafter referred to as NAPP), an institution that has been actively involved in implementing the measures provided by NAS 2016-2020 in this field.
As regards transparency in public procurement, NAPP and the Agency for the Digital Agenda of Romania (hereinafter ADAR) ensure the publication of information on companies convicted by final judgment, as well as companies which have not properly performed the contracts awarded under public procurement procedures.
The involvement of the private sector in promoting integrity in public procurement was achieved under the Project “Integrity Pacts - Civil Control Mechanisms for Safeguarding European Funds”, funded by the European Commission.
The pilot project is implemented by Transparency International Romania and by the Institute for Public Policy, and tests the Integrity Pacts under two projects:
As regards methodological support, the Online Public Procurement Guide (www.achizitiipublice.gov.ro) was developed under the project SIPOCA 45, where NAPP was a beneficiary, to provide operational support to all stakeholders involved in the national public procurement system. The guide provides information covering all the processes of a public procurement procedure, carried out by any contracting authority, throughout the course of all activities, from the identification of a need to the analysis of the performance indicators associated with procurement and provision of data and information on the results obtained and identifying measures to improve public procurement processes.
NAPP carried out various actions in order to adopt certain norms and procedures necessary for more efficient ex-ante controls, leading to the following outcomes: one methodology, six internal notices and four normative acts.
As regards the results concerning the measure on training courses delivered in the field of public procurement, it is worth mentioning here the action developed by NAPP in partnership with MoJ, NIM and NACS. The National Institute of Magistracy and the National Agency of Civil Servants organised training programs in the field of public procurement.
NAPP and MoJ, as coordinating institutions, have made efforts to develop a reward mechanism for bidders who have proven to be honest in the conduct of their business. In view of the difficulties encountered in the implementation of this measure in compliance with the Union framework, the European Commission DG GROWTH: Internal Market, Industry, Entrepreneurship and SMEs was also consulted. Nevertheless, they could not provide support, given the general nature of the measure.
Another measure which was not implemented during this strategic cycle was the review of judicial practices in the field of public procurement. This measure will be considered for adoption in the future NAS.
The Ministry of Justice continued to focus on the importance of integrity in the field of public procurement, including from the perspective of the evaluation topics included in the thematic evaluation missions related to NAS 2016-2020, which addressed, inter alia, the mechanism for preventing conflicts of interest in the public procurement procedure (PREVENT System, managed by the National Integrity Agency). In terms of compliance with the provisions of Law no. 184/2016, on the establishment of a mechanism to prevent conflicts of interest in the procedure for awarding public procurement contracts, the analysis revealed that the contracting authorities personnel involved in the procedures for awarding public contracts fill in and/or update and submit the integrity form to the National Integrity Agency accordingly, more specifically, the heads of the contracting authorities and the persons in charge with filling in and updating the integrity forms take all necessary actions to remove any possible conflict of interest when integrity warnings are issued in the proceedings in question.
In conclusion, despite important developments made in the field, public procurement remains a priority area of strategic intervention for the current programmatic document.
FINANCING OF POLITICAL PARTIES AND OF POLITICAL CAMPAIGNS
Another priority sector of NAS 2016-2020 was the financing of political parties and election campaigns, a sector that was also subject of analysis under the third round of evaluation of the Group of States against Corruption. GRECO completed the compliance procedure on this sector by adopting the Addendum to the Second Compliance Report on Romania, in 2017, with only two of the thirteen recommendations made by the anti-corruption body still only partially implemented.
Some of the recommendations formulated by GRECO were also included in NAS 2016 - 2020; among the measures formulated in the strategic document there are the two partially implemented recommendations mentioned above and aimed at increasing the applicable sanctions in compliance with Law no. 334/2006 on the financing of the activity of political parties and electoral campaigns, so as to be efficient, proportionate and to have a deterrent effect, as well as the introduction of the legal obligation that all donations exceeding a certain threshold value should be made using the banking system.
The measure regarding the regular organisation of training sessions for the representatives of the political parties by the AEP was implemented due to the permanent dialogue between the Authority and the representatives of political parties and their financial agents.
During the reference period, PEA representatives provided assistance to interested parties either on request or during information sessions or public debates.
Thus, in 2016, 2018 and 2019, 14 information and training sessions were organised, which brought together a number of 232 participants.
In 2017, given the ongoing contact between the PEA staff with responsibilities in this field and the financial agents of the electoral competitors, as well as the fact that, in most cases, they appointed the same financial agents as in 2016, it was not necessary to organise new events and training sessions; the Permanent Electoral Authority informed and assisted interested parties upon request.
For the 2017 elections of the representatives of Romania in the European Parliament and of the President of Romania in 2019, Guidelines on financing electoral campaigns were developed and disseminated to the electoral competitors.
In 2020, in the context of electoral preparations and elections for local public administration authorities and for the Senate and the Chamber of Deputies, one press conference and five training sessions were held for financial agents and their representatives or political parties.
The measure regarding the publicity of the sources of financing for the activity of political parties and electoral campaigns, as well as the related expenses, was implemented by publishing on the website of the Permanent Electoral Authority the reports submitted by political parties (33 reports in 2016, 43 in 2017 and 31 in 2018 on the website www.roaep.ro, 44 in 2019 and 68 in 2020 on the website www.finantarepartide.ro).
The measure on the development and use of software to eliminate multiple voting and unlawful voting was implemented in cooperation with the Special Telecommunications Service (hereinafter STS) in order to develop the IT system for monitoring turnout and preventing unlawful voting (hereinafter referred to as SIMPV); this system was first used in the 2016 elections, as well as other IT applications used in the electoral process. SIMPV was further operationalised for all types of elections and referendums.
As regards the measure concerning the activity and legal status of electoral experts and computer operators, we mention that the provisions of the legal framework in force regulate the admission of individuals in the Body of Electoral Experts or in the records of computer operators and ensure the professionalism, impartiality and integrity of computer operators. The Permanent Electoral Authority is constantly monitoring compliance with these conditions, as well as the cases where electoral officials have been sanctioned for misdemeanours or offences related to an electoral process.
In 2019, four training sessions were organised for the heads of the polling stations abroad and their substitutes or for postal voting, a training seminar was organised for the persons designated by the polling stations abroad for the elections for the President of Romania, as well as a training session for 120 participants from MFA to prepare them to participate in the organisation of elections for the President of Romania.
In 2020, 120 training sessions were delivered, totalling 1,602 participants. The sessions were organised by the Special Telecommunications Service, with the support of the Permanent Electoral Authority and of the Ministry of Foreign Affairs. 1,259 participants were appointed, by decision of the Permanent Electoral Authority, as members-operators in the polling stations abroad.
During 2016-2020, AEP published numerous materials and information guidelines regarding its field of activity.
Detailed reports were published at www.finantarepartide.ro in order to implement the measure on open data on the financing of political parties and election campaigns.
Enhancing integrity in the financing of political parties and electoral campaigns is one of the priority sectors in which considerable progress has been made for all measures.
ACTIVITY OF THE MEMBERS OF PARLIAMENT
NAS 2016-2020 included the activity of the members of the Parliament among the vulnerable sectors, and defined a set of measures to enhance integrity, and reduce vulnerabilities and corruption risks. We note that, unlike the previous strategic exercise, the Parliament did not adopt a declaration of adherence to the core values, principles, objectives and to the monitoring mechanism of the strategic document.
Of the eight measures defined by NAS for this vulnerable sector, some taken from the reports drafted by the Council of Europe anti-corruption body (GRECO), the Parliament partially implemented only two measures, by adopting Decision no. 77/2017 on the Code of Conduct for Deputies and Senators, and by amending the Regulation of the Chamber of Deputies, which currently includes criteria and procedures for waiving parliamentary immunity of Members of the Parliament, including those who are also members of the Government.
ENVIRONMENTAL PROTECTION
Environmental protection in Romania has evolved, especially due to Romania’s accession to international organisations and especially to the European Union. Popular culture and legal culture on environmental protection, in turn, have developed in Romania, also as a result of the country’s openness to the international community, but much more efforts are needed to prevent and combat environmental crime.
At national level, according to the Sustainable Development Strategy approved by Government Decision no. 877/9 November 2018, which focuses on the 17 SDGs assumed at UN level, sustainable development is also a paradigm for a fair society. This approach involves a peaceful society in which the benefits of sustainable development promote access to justice for all and the creation of efficient, accountable and inclusive legislative and institutional structures at all levels. Sustainable development can only become a functional approach if society becomes aware of and embraces this perspective as a natural reality.
To illustrate the extent of environmental issues, we present some examples:
Illegal logging
According to the data from the second cycle of the National Forest Inventory (NFI), more than 20 million cubic meters of wood disappear from Romania’s forests every year.
The situation was reported by the international press (and compared to the Amazon forest disaster) and eventually reached the agenda of the European Commission, which sent a letter in early February 2020 prior to opening the infringement procedure.
In this context, COM indicated the following: In the case of Romania, national authorities have failed to effectively check the operators and apply appropriate sanctions. The inconsistencies in the national legislation do not allow Romanian authorities to check large amounts of illegally harvested timber. Additionally, the Commission found that Romanian authorities manage forests, including by authorising logging, without evaluating beforehand the impacts on protected habitats, as required under the Habitats Directive and the Strategic Environmental Assessment Directive. There are also shortcomings in terms of public access to environmental information in forest management plans. The Commission therefore decided to put Romania on notice, giving the country one month to take the necessary actions to remedy the deficiencies identified by the Commission. Otherwise, the Commission may decide to send a reasoned opinion to the Romanian authorities.
After having examined in detail the arguments presented by Romania following a formal notice sent in February 2020, the Commission concluded that the problems had not been resolved. The Commission has therefore issued a reasoned opinion, urging Romania to properly enforce the EU legislation, which prohibits the production and placing on the EU market of products obtained from illegally harvested logs.
Air pollution
Every year, about 25,000 people lose their lives in Romania due to pollution-related causes.
COM opened infringement proceedings (case 2020/2001) against Romania, urging the country to adopt a national air pollution control programme, pursuant to Directive (EU) 2016/2284 on the reduction of national emissions of certain atmospheric pollutants. In this context, COM urged Romania to adopt national air pollution control programmes. The Commission urges Romania (and Greece) to adopt national air pollution control programmes pursuant to Directive (EU) 2016/2284 on the reduction of national emissions of certain atmospheric pollutants. The Directive provides for the Member States obligation to develop, adopt and implement national air pollution control programmes in order to achieve air quality levels which do not result in significant adverse effects or risks to human health and the environment. The Directive lays down emission reduction commitments for the Member States' anthropogenic atmospheric emissions for various substances (sulphur dioxide, nitrogen oxides, non-methane volatile organic compounds, ammonia and fine particles). Emissions from these pollutants and their impact must be monitored and reported.
Destruction of rivers
In 2015, COM opened infringement proceedings (Case 2015/4036) against 27 micro-hydropower plants located in protected areas which destroyed ecosystems along several mountain rivers.
Closure of non-compliant landfills
In 2008, Romania was convicted by the Court of Justice of the European Union for failing to fulfil its legal obligation to close and clean 68 landfills.
Many such anti-environmental realities have become noticeable in recent years, and the media frequently report on environmental damage cases. In light of its international obligations, but especially in order to protect the environment and living conditions in Romania, the current generation and the relevant public authorities should demonstrate political will and create synergies to protect the environment, including by establishing and implementing effective prevention measures.
The Working Party on General Matters including Evaluation (hereinafter referred to as GENVAL), decided on 14 December 2016 that the eighth round of mutual evaluations mutual evaluations would be devoted to the practical implementation and operation of the European policies on prevention and combating environmental crime. It was agreed that the evaluation should focus on those offences which Member States felt warranted particular attention. To this end, the eighth evaluation round covered two specific areas, illegal trafficking in waste and illegal production or handling of dangerous materials.
Romania was the 22nd state evaluated. The report was drafted by the team of experts with the support of the General Secretariat of the Council, based on the findings of the evaluation visit that took place in Romania on 13-16 November 2018, and on Romania’s detailed responses to the evaluation questionnaire, along with detailed answers to a number of additional questions.
The evaluation report also includes recommendations on areas for improvement. To this purpose, the Strategy is correlated with a series of international evaluation tools to which Romania is a party, including GENVAL.
Corruption plays a major role in the social relations related to the field of environmental protection, it impacts environmental policies and the management of natural resources. An information material published by the UN for the International Anti-Corruption Day talks about corruption in environmental issues. From embezzlement of environmental programmes and illegal issuance of permits for the exploitation of natural resources, to complicity of civil servants who facilitate macro-environmental crime, corruption occurs at every level, allowing actions that degrade the environment and hamper human access to vital resources.
International interest in the effects of corruption on the environment is not new. In this context, for example, the World Bank is examining the issue of illegal logging worldwide, in a study published in 2012.
The analysis of the above-mentioned issues led to the strategic choice to supplement the priority sectors of the previous strategic instrument, adding the environmental protection sector.
This section also reflects the latest international recommendations for Romania.
NATIONAL HERITAGE PROTECTION
The inclusion of a specific objective on cultural heritage protection in the National Anti-Corruption Strategy will contribute to strengthening administrative capacity and increasing the performance of the public sector institutions and officials in charge with cultural heritage protection through integrated practices, better information and participation of public cultural institutions, of civil society and citizens in decision-making, to better protect cultural heritage.
The activities involving the regulation, endorsement, inventory, inspection and control regarding the state of conservation of the cultural heritage and the interventions carried out during such activities should be managed in a unitary way. The specific objective proposed, through its main actions, contributes to such a unitary management in this field.
According to the National Defence Strategy 2020-2024, “the promotion of the national identity, including by preserving and valorising the cultural and natural heritage, as well as by responsibly encouraging areas of excellence” is one of the national security objectives. The Country Defence Strategy 2020-2024 considers, among the risks, the risk of cultural heritage disappearance. According to the strategy, it “is generated by the poor state of conservation of immovable, movable and intangible cultural assets, by insufficient administrative capacity, conflicting interests and ignorance, as well as by natural factors with behaviours difficult to forecast in the context of climate change. The permanent and accelerated degradation of the cultural heritage may lead to the loss of the elements that define both the national identity and the multicultural heritage of Romania.” (our emphasis) Therefore, we consider appropriate the combined efforts under the National Anti-Corruption Strategy and under the National Defence Strategy.
Achieving this strategic goal requires governance based on integrity, efficiency, transparency and citizen participation in public decision-making.
The current situation calls for the development of a coherent and articulated system of skills, responsibilities, tools and resources, in order to enhance integrity, reduce vulnerabilities and corruption risks in the system of cultural appraisal and intervention on cultural heritage.
Administrative capacity in the field of cultural heritage protection needs to be strengthened (funding and filling of vacancies with professionals, continuing training of officials), regulations on the organisation and functioning of specialist committees in the field of cultural heritage protection attached to the ministry or its decentralised public services should be supplemented with provisions on disclosure of interests and reasoned decisions, requiring unitary procedures at the level of decentralised public services.
At the same time, there is a need to implement an electronic system for managing the responsibilities of the ministry, decentralised public services, subordinate institutions in the field of cultural heritage protection and other responsible entities.
Over time, several vulnerabilities have been identified in the cultural field; such vulnerabilities were also mentioned by reports of oversight bodies (Court of Auditors, Oversight Body of the Minister, etc.), as they have often led to various integrity incidents. Many of these were due to a lack of anti-corruption education provided to the people involved, as well as to a lack of adequate prevention tools (code of ethics, procedures, etc.) at the level of specialist committees, decentralised services and public cultural institutions.
Following the implementation of NAS 2016-2020 at the level of the Ministry of Culture, several good practices were identified [e.g.: from the Integrity Pact implemented by the Ministry of Culture and the consortium of non-governmental organisations created by Transparency International Romania (hereinafter referred to as TI-Ro) and the Institute for Public Policy (IPP) under the E-culture project: Digital Library of Romania; CultureHack project - on the reuse of open data in the cultural sector (Hackathon - open data competition), carried out by the Ministry of Culture together with the General Secretariat of the Government and the Centre for Public Innovation], which led to increased transparency and corruption risks prevention in the cultural field. Also, the inclusion in the new NAS will enable continuity and an enlargement of the scope of good practices in the field, so as to ensure the transparency of public spending.
Thus, the inclusion in the National Anti-Corruption Strategy of a specific objective regarding the cultural field will contribute to the accurate and effective identification of cases of incompatibilities and conflicts of interest, and acts of corruption, along with strengthening the anti-corruption education and public awareness on the impact of corruption.
