Responsabilitate, Eficienţă, Integritate

NOILE CODURI

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Reply to the GRECO Questionnaire by Romanian authorities within second evaluation round 
Part I: Proceeds of Corruption 
1. Interim measures: freezing and seizure of instrumentalities and proceeds of crime
1.1 In general
1.1.1 Briefly describe the legal framework in relation to interim measures (e.g. measures for the freezing or seizure of proceeds of crime). Please provide official translations (English or French) of the relevant legal texts or case law.
Under the Criminal Procedure Code (art. 163), the interim measure of seizure can be ordered by the prosecutor or the court to prevent the disposal or disappearance of goods, eventually to cover the prejudice caused by the offence and to guarantee the execution of the criminal fine.
In order to repair the damage, the interim measures can only be ordered against the goods of the accused or the indicted and the person bearing civil liability, up to the probable value of the damage. To ensure the enforcement of the fine sanction, the seizure is applied only against the goods of the accused or the indicted.
When the measure is decided, the prosecutor or the court will identify and evaluate the seized property, using experts whether this is necessary. Usually, the seized goods remain in the possession of the legal owner at that time, who has the obligation not to dispose them or to sale them. Whether it is considered to be a danger to be sold, the mobile goods will be sealed or picked up or a custodian will be appointed.
The seizure procedure, the possibility of complaining against the ordered measure and the restitution of assets is provided by articles 163 – 170 of the Criminal Procedure Code (see Annex I).
In the pre-trial stage, the seizure may be disposed through the ordinance issued by the prosecutor and is enforced by the institution which disposed it. In the stage of the trial, the seizure is disposed by the court through an interlocutory decision and is enforced by the bailiff. When the damaged person is a public authority, a public institution, an institution or another legal person of public interest, as mentioned in the art. 145 of the Criminal Code, the interim measures disposed by the prosecutor or the court may also be enforced through the enforcement agents of that damaged entity. The body that enforces the seizure draws up an official report on all acts performed under art. 165.
As for the instrumentalities, the proceeds and other objects that bear a trace of the crime, they could be apprehended during the investigation phase in order to be used as evidence in the trial, as provided in Title III, chapter 2, section VII “Material evidence” and Section VIII “Seizure of objects and writings. Execution of searches”, art. 94 – 111 of the Criminal Procedure Code.
If the person who is in the possession of the object or writing does not freely present it, the prosecutor or the police officer has the right to seize (apprehend) the “corpus delicti”. In the trial stage, the disposition of seizure of “corpus delicti”, if not already taken during the investigative phase is taken by the judge and communicated to the prosecutor and enforced by the police.
The objects are kept at the disposal of the prosecutor, during the investigative phase and at the disposal of the court, during the trial phase, until the definitive solution in the case. Perishable goods are sold, according to the procedure mentioned in art. 165 of the Criminal Procedure Code, as detailed in the answer to the question under item 1.1.2.
The pieces of evidence, if they fall under the provision of art. 118 Criminal Code on the Special confiscation cannot be returned to the owner, they will be confiscated. The other pieces of evidence could be returned to their owner if this return is not supposed to hinder the purpose of finding the truth. In that case, the person is compelled to conserve the object until the end of the trial.
1.1.2 If your country allows for such interim measures, can these measures be applied in relation to proceeds of corruption [1] ? Please explain by making reference to specific legal texts.
In view of implementing the provisions of the Council of Europe Convention on laundering, search, seizure and confiscation of the proceeds of crime (1990) ratified by the Law no. 263/2002 and the UN Convention against Trans-national Organized Crime (2000) ratified by the Law no. 565/2002 – concerning the interim measures that should be taken in order to prevent any transfer or disposal of property which, at a later stage, may be confiscated – Romania adopted several legal instruments stating explicitly that interim measures in relation with proceeds of certain types of crime are allowed.
For the commission of corruption offences, offences assimilated to corruption or related to corruption, the interim measures mentioned in the answer to the question under item 1.1.1. are applicable, according to article 13 of Law no. 39/2003 on prevention and countering of the organized crime - which can be applied to the corruption offences committed by organized criminal groups (see Annex II) and according to article 22 of the GEO no 43/2002 approved by Law no. 503/2002 regarding the National Anticorruption Prosecutor’s Office (see Annex III).
1.1.3 In your country, are there specific regulations in place for the management of proceeds of crime which have been seized or frozen?
According to the Criminal Procedure Code provisions, the seized assets during the criminal trial shall be frozen. The perishable goods, precious metals or stones, the foreign currency, domestic securities, art and museum objects, valuable collections, amount of money shall be mandatory taken. Perishable goods have to be delivered to commercial institutions where the State is the major shareholder, which must accept and valorise them immediately and the other mentioned goods to be deposited to the banks or other specialized institutions. If there is any danger of vanishing, the other seized movable goods shall be sealed or taken, with the possibility of appointing a custodian. The seized goods are deposited until the measure of seizure runs out (articles 165 – 166 of the Criminal Procedure Code, see Annex I).
For the real estate seized, the authority that ordered the seizure asks the competent authority (real estate register judge) to take a mortgage inscription of all seized real estate, including as annexes copies of the writ by which the seizure was ordered and a copy of the official report of the seizure.
1.1.4 Is a specific investigation aimed at identifying, tracing and freezing proceeds of crime systematically initiated when certain serious crimes, notably corruption, are detected?
A. When notified with the commission of one of the corruption offences mentioned in the Law no. 78/2000, the prosecutor has the obligation of systematically gathering all the necessary evidence in order to identify the perpetrator, to determinate the legal qualification of the deed committed, to establish whether he/she is criminally responsible and to clarify all the aspects of the case that could help its judicious solving. Within this object of the criminal investigation, the prosecutor will use all the investigative tools provided by the law also in order to establish the value of the damage caused by the committed offence, to identify the instrumentalities and proceeds of crime and to impose the freezing measures.
According to the Law no. 78/2000 and the GEO no. 43/2002, in order to gather evidence or to identify the offender, the NAPO can authorize for a period of most 30 days the following:
-          the surveillance of the bank accounts and the accounts assimilated to these;
-          the surveillance and the interception of communications;
-          the access to informational systems;
-          the communication of papers, bank, financial or book-keeping papers.
For serious reasons, the authorization may be extended in the same conditions, the maximum period of the measures disposed being 4 months.
At the motivated court’s authorization and at the prosecutor’s request, the interception and the audio-visual recording of the conversations may be ordered if there are serious signs on the commission of an offence for which the prosecution is made ex officio and the interception and the audio-visual recording are necessary for finding the truth (articles 91¹-915 of the Criminal Procedure Code).
NAPO is authorized to detain and use appropriate means for the obtaining, checking, processing and stoking information on corruption deeds provided by Law no. 78/2000. According to art. 14 of the GEO no. 43/2002, the state services and bodies specialized in gathering and processing intelligence are compelled to inform NAPO with any piece of intelligence related to the commission of a corruption offence.
When there are justified signs that it was or it will be committed a corruption offence of the competency of NAPO, but the offence or the offender can not be identified by other means, such data could be gathered by undercover investigators. For an appropriate development of the prosecution, NAPO may order specific measures for witnesses, experts and victims protection.
Similar measures are applicable to the corruption offences committed by organized criminal groups according to Law no. 39/2003 on organized crime prevention and sanctioning.
B. The omission of submitting the declaration of assets by certain categories of persons[1], as provided by Law no 115/1996 amended by GEO no 24/2004 generates the starting ex officio of the assets control procedure. This procedure can lead to confiscation of illicitly acquired goods.
The persons who exercise a public office within public authorities and institutions, no matter how they were nominated and the persons with control attributions are obliged to declare, in 30 days from receiving, any direct or indirect donation or gift received in connection with the exercising of their office duty, excepting the insignificant ones.
1.1.5 For the last three years where information is available, please indicate the number of corruption cases in which interim measures were taken and the value of the property frozen or seized in such cases.
Since the NAPO’s establishment on 1st of September, 2002 and until present, there were registered 72 cases in which there were ordered interim measures. These measures aimed at repairing the prejudice caused by committed offences within the competence of NAPO, but also for the confiscation of goods or values used for committing the offences. The value of the goods for which the provisional measures were taken in all mentioned cases is over 200 billion ROL (over 5 Million EURO). 
1.2 In relation to bank, financial or commercial records
1.2.1 Is the communication, freezing or seizure of bank, financial or commercial records possible in relation to the proceeds of corruption offences?
For the communication of the bank, financial or commercial records related to the proceeds of corruption, there are applicable the following legal provisions: 
According to article 27, para.1, letter a) of Law no. 78/2000 (see also Annex IV) and article 16 of GEO no. 43/2002, when there are relevant information and signs that an offence provided by Law no. 78/2000 (n.b.: corruption offences, assimilated or related to corruption) was committed, the prosecutor may authorize for a period of at most 30 days (with the possibility of extension with at most 4 months), the supervision of bank accounts and the accounts assimilated to these. The prosecutor may demand, according to article 27 para.1 letter d) of Law no. 78/2000 and article 16 para.4 of GEO no. 43/2002, bank, financial or accounting records, as long as these may serve as evidence in corruption cases or for the identification of the offender.  
Pursuant to article 20 of GEO no. 43/2002, the NAPO’s General Prosecutor or the prosecutor nominated by him may demand, in writing, to the financial institution the verification of the bank and financial records, with no possibility from the requested financial institution to oppose the banking or professional secrecy. The request is made according to art. 37 of Law of banks no 58/1998, amended by Law no. 485/2003, as long as is made on the basis of a criminal case and the information required is used only for the purpose it was asked for, according to the law.  
In what concerns the communication of commercial records, there are applicable the provisions of Criminal Procedure Code on taking into custody the objects and writings, taking into custody by force of objects or writings and search (articles 96 – 111 Criminal Procedure Code). According to these provisions, any natural and legal persons who have in possession an object or a writing that could serve as evidence is obliged to give it to the prosecution body or to the court, at their request. If the object or writing is not voluntary given, the prosecutor or the court can order its forced taking into custody. When the person asked to deliver one of the objects or writing denies its existence or possession, the judge may order the search, including the search of a public institution or other legal entity. These procedural measures are communicated to the parties and the interested institutions.
1.3 International co-operation
1.3.1 When your country is the requesting state: describe your country's legal framework and systems applicable to request for international legal assistance concerning provisional measures in relation to corruption offences.
The procedural norms existent in the international conventions and treaties Romania is a party to are applicable, including the provisions of the Council of Europe Criminal Convention on corruption, adopted at Strasbourg on the 27th January 1999, ratified by Law no. 27/2002. By Law no. 260/2004 Romania also ratified the additional Protocol to this Convention, adopted in Strasbourg at the 15th of May 2003. 
The requests of international judicial assistance in criminal matters are solved according to the provisions of the Law no. 302/2004 (see Annex V). According to this normative act, requests for international judicial assistance that refer to provisional measures regarding offences of corruption are carried out through rogatory commissions.  
Law no. 302/2004 defines:
  1. The judicial authorities are the law courts and the prosecutor’s offices attached to these, set up according to Romanian law, and the authorities that have this capacity in the Requesting State, according to the latter’s statements within the international instruments applicable.
  2. The central authorities are the authorities thus designated by the Requesting State or the Requested State, in view of transmission of requests for international judicial assistance;  
According to Article 13 of the above Law, the Romanian Central Authorities are the Ministry of Justice, if the request regards the trial activity or the stage of execution of criminal judgements, and the Prosecutor’s Office attached to the High Court of Cassation and Justice if they refer to activities from the stage of criminal investigation and prosecution. Also, in case of emergency, requests for international judicial assistance may be sent directly by the requesting judicial authorities to the requested judicial authorities, provided that the international legal instrument applicable in the relations between the Requesting and the Requested States regulate this type of transmission. A copy of the request will be sent simultaneously to the competent Central Authority.
The international rogatory commissions are a form of international judicial assistance that consists of the mandate that a judicial authority from one State grants to a judicial authority of the same kind from another State, so that it performs, in its place and on its behalf, certain judiciary activities regarding a certain criminal trial.
When Romania is the Requesting State, the Romanian judicial authorities send their request for rogatory commission to the competent Romanian Central Authority. The Romanian Central Authority performs the international conformity check of the request and sends it to the Central Authority of the Requested State. As mentioned above, in case of emergency, the Romanian judicial authorities may send their requests for rogatory commissions directly to the foreign judicial authorities.
These procedural rules are applied in all cases, including in what concerns the provisional measures in corruption cases.
1.3.2 When your country is the requested state: describe your country's legal framework and systems applicable to request for international legal assistance concerning provisional measures in relation to corruption offences.
When Romania is the Requested State, the competent central authorities receive the request for rogatory commission and send it to the judicial authority. Art. 172 of Law no. 302/2004 provides that, upon demand from the Requesting State, the provisional measures provided by the Romanian law may be taken to protect evidence, to maintain an existing situation or to protect threatened interests. After the request is solved by the Romanian judicial authority, the competent Romanian central authority will inform the foreign central authority of the outcome of the request on the measures in relation to corruption offences.  
2 Confiscation and other deprivation of instrumentalities and proceeds of crime
2.1 In general
2.1.1 Describe the legal framework in relation to confiscation or other deprivation mechanism (underlining whether confiscation of instrumentalities and proceeds of corruption is discretionary or mandatory); describe how it works in practice, indicating notably whether there are authorities responsible for their implementation. Please provide official translations (French or English) of the relevant legal texts or case law.
The special confiscation, if the conditions provided by article 118 of the Criminal Code are met, is a mandatory measure taken by the court or the prosecutor, as following:
a)      goods produced by a deed provided in the criminal law;
b)      goods that have served or that were meant to serve in the commission of an offence, if they belong to the perpetrator;
c)      goods handed in order to determine the commission of an offence or to reward the perpetrator;
d)      goods obviously acquired through commission of the offence, if they are not returned to the person injured and to the extent that they do not serve to compensate the latter;
e)      goods possessed in violation of legal provisions.
The execution of the special confiscation measure is done according to the article 439 of the Criminal Procedure Code, which provides for: The safety measure of special confiscation taken by ordinance [the prosecutor] or court decision is enforced as follows:
a) The confiscated objects are submitted to the competent bodies which take them over and turning them to account in accordance with the law;
b) When the destruction of confiscated objects was ordered, this will be performed, according to the case, in the presence of the prosecutor or of the judge, an official report being drawn and submitted to the case file.
The turning to account of the confiscated movable goods and securities, which became state property on the basis of the court decision, is made according to the rules provided by Government Ordinance no. 128/1998, on the manner and conditions of turning to account the confiscated goods and the goods which became private state property.
Besides the general rule described above, specific law provisions regarding the mandatory character of the confiscation of the proceeds of corruption offences and offences assimilated to corruption or related to corruption are mentioned in the articles 19 and 20 of the Law no. 78/2000 on corruption prevention (see Annex IV), article 13 of the Law no. 39/2003 on prevention and countering the organized crime applicable to the corruption offences committed by organized criminal groups (see Annex II) and article 22 of the GEO no 43/2002 approved by Law no. 503/2002 regarding the National Anticorruption Prosecutor’s Office (see Annex III).
The New Criminal Code, approved by Law no 301/2004, and which will come into force in July 2005, has amended the provisions regarding the special confiscation. The article 118 of the present Criminal Code becomes 136[2], which keeps almost the same provisions (as the possibility of confiscation from the third party in bad faith) and new ones such as:
- the possibility, as a general rule (not only for specific offences) to confiscate the equivalent value;
- an exception to the mandatory character of the confiscation - for the goods which are part of the means of subsistence, means of daily needs or means for exercising the profession of the defendant.
2.1.2 What is the nature of the confiscation (sanction or other measure)? Has the confiscation or forfeiture to be taken into account in the determination of the sanction?
The measure of confiscation is not a punishment. The special confiscation provided by article 118 of Criminal Code is a safety measure. The special confiscation means the forced removing of certain goods provided by law from the patrimony of the offender in order to enter in the state patrimony. The special confiscation is an in persona measure, with the exception of the case provided in 118 lit. e) which is in rem, meaning that it produces effects towards any person who is in the possession of the goods to be confiscated.
In the determination of the criminal sanction (the punishment), the court does not take into account the measure of the confiscation. 
2.2 Specific questions
2.2.1 If confiscation of criminal proceeds and instrumentalities is possible, is it only possible for primary or also for secondary proceeds (= transformed or converted into other property)? May expenditures for gaining the proceeds be deducted?
Yes, confiscation of secondary proceeds is possible. When the good, object to the measure of special confiscation is not found or was acquired by a third party in good faith, jurisprudence decided that the offender is obliged to pay the equivalent in money of the good.
The confiscation of the equivalent in money of the goods that are not found or the confiscation of the goods acquired in the place of the goods that are object to confiscation are also provided for specific offences – e.g. corruption offences – by article 19 of Law no. 78/2000, article 22 of GEO no. 43/2002, and as for the corruption offences committed by organized criminal groups, by article 13 of Law no. 39/2003.
According to article 19 of Law no. 78/2000, if the goods that were given for committing corruption deeds or to reward the offender or the goods acquired by committing corruption offences are not found, the offender shall be obliged to pay their equivalent in money.
According to article 13 of Law no. 39/2003, if the goods that are object to confiscation are not found, it shall be confiscated their equivalent in money or the goods acquired in their place. The incomes or other material advantages obtained from the goods that are object of confiscation are, also, confiscated. If the goods that are object to confiscation can not be individualized by the goods legally obtained or, if the incomes or other material advantages obtained from the goods that are object to confiscation can not be determined, there shall be confiscated other goods up to the value of the goods that should be confiscated. Similar provisions are included in GEO no. 43/2002.
Article 25 of Law no. 656/2002 on the prevention and sanctioning of money laundering provides that in the situation of the commission of such offence, there are applicable the provisions of article 118 of the Criminal Code on special confiscation and if the goods that must be confiscated are not found, there shall be confiscated their equivalent in money or the goods acquired in their place. In order to guarantee the confiscation of goods, provisional measures can be taken in accordance with the provisions of the Penal Procedure Code.
Regarding the offences of bribery, trafficking of influence and receiving of undue benefits, articles 254 - 257 of the actual Criminal Code provide that the goods, the values or any other goods which made the object of the mentioned offences are confiscated, and if these are not found, the convicted person is obliged to pay the equivalent in amounts of money.
Expenditures for gaining the proceeds of crime are not deductible. According to the Title II art 21 paragraph (4) letter b) of the Fiscal Code regarding the taxable profits of the legal persons, the expenditures for confiscation (the goods or revenues achieved from the illicit trading/selling, according to the legal provisions) are not deductible when calculating the taxable profit of the legal persons. Also, in Title III of the same law, it is ruled the taxable revenues of the natural persons and it is provided that the expenditures for confiscations are not deductible[3].
2.2.2 Is value confiscation possible? If yes, how is the exact economic advantage assessed?
Yes. See previous answer (2.2.1).
As a principle, the assessment of the value corresponding to the confiscated goods is the estimation of the value of the object, based on a judicial expertise, at the time of the final court decision. When, from the date of the commission of the offence until the date of the final court decision, the goods confiscated have produced any economic advantages, these latter ones must be confiscated too.
For repairing the damages produced to an injured party (e.g. the civil action of a criminal lawsuit), the value of the confiscated goods shall be calculated as to cover the amount of the existing prejudice (damnum emergens – article 998 Civil Code) and the benefits that the civil party could have obtained (lucrum cessans – article 1084 Civil Code).
2.2.3 Can you confiscate proceeds of crime without obtaining the conviction of the perpetrator (in rem confiscation)? If not, is the introduction of such a system being envisaged?
Yes. The safety measure of special confiscation is most often ordered by court decisions of conviction, but, also, it can be ordered by decisions of acquittal when it is found that certain goods (see article 118 letter e) of the Criminal Code – referring at goods held in violation of the law) must be confiscated. In situations of ceasing the pursuit or discharging, the measure of special confiscation may be ordered by the prosecutor according to article 245, letter b) of the Criminal Procedure Code. Also, in special situations provided by the law, if the court decides to replace the criminal liability with a responsibility based on administrative sanctions, it may decide upon the measure of special confiscation, if necessary. The Criminal Procedure Code provides the situations of the offender’s decease and irresponsibility (article 245, article 346 and article 353 Criminal Procedure Code[4]).
2.2.4 Confiscation of property owned by a third party: Is it possible to confiscate property, acquired by a third party or close relatives (spouse, cohabitee etc.) in order to avoid confiscation?
Yes. Article 118 of the Criminal Code allows the confiscation of goods which are connected to the commission of the offence or detained in violation of legal provisions, no matter who owns them.
Nevertheless, in the judicial practice, it was decided by the Supreme Court (T.S. d. no 2209/1971) that confiscation of goods owned by the third parties is not possible, if the third party who acquired the goods is in good faith – bona fide. Still, the offender will have to return the amount of money obtained by selling the good which should have been confiscated. If the transaction was done in order to avoid confiscation, there is no good faith, as the third party was aware of their origin, and the goods shall be confiscated.
2.2.5 Does the system in place in your country provide for possibilities to reverse the burden of proof for the purpose of confiscating proceeds of corruption? Please specify.
No. In the Romanian legal system, the burden of proof in the criminal cases is always the task of the prosecution, the same being the case in what concerns the proceeds of corruption.
Article 44 of the Romanian Constitution equally guarantees the property right for any person, no matter who is the owner. Para 8 of the article 44 provides that legally acquired assets shall not be confiscated. Legality of acquirement shall be presumed. The assets designated, used or resulted from offences or contraventions may be confiscated only according to the legal provisions (paragraph 9).
2.2.6 Does the system in your country provide for possibilities to use the confiscated property in satisfaction of the claim of damages from a person who has claim to damages on account of the offence?
The law provides, as it was aforementioned, that the goods acquired through the commission of the offence will be confiscated only if they are not returned to the victim or do not serve for her/his compensation. For this reason, if there is a compensation request drafted by the victim, the Court is obliged to examine it and will decide the special confiscation only for the amount that surpasses the value of the victim’s compensation.
2.2.7 Are there mechanisms in place - whether civil, administrative or penal - allowing to remove the advantage obtained through active corruption offences (e.g. a company reimbursing the excessive benefit deriving from a public procurement transaction influenced by corruption, the compensation of the public entity in exchange for non-prosecution etc.)? If yes, please provide some figures [2] illustrating the importance of such mechanisms in practice.
A legal principle applicable in Romania regarding the civil side of a criminal lawsuit concerns the re-establishing of the previous situation, meaning that any advantage obtained through the commission of an offence must be removed.
According to the criminal law provisions, any advantage obtained through active corruption is confiscated. Pursuant to article 118, letter c) of the Criminal Code, the goods or the sum of money given to the offender in order to determine him/her to commit the offence or for his/her reward shall be confiscated. This provision is applicable for consumed offence and for attempt, also for the case when the offender has committed another deed. In the doctrine, it was emphasized that such goods shall be confiscated also when the instigated did not commit the deed or notified the authorities on the offer it was made to him/her (article 255 para.4 of Criminal Code on active bribery).
GEO no. 60/2001, with further amendments and completions provides in article 58 corroborated with article 95 the right of the court to annul the contract on public procurement if it is found that the one who made the offer was engaged in corrupt or fraudulent practices related to the concluding of the respective contract.
Also, in article 992 of the Civil Code on unjust enrichment, it is provided that the person who, by error or by knowing, receives something that he/she is not endowed to, must return it to the one who gave it.
2.2.8 For the last three years, please provide statistical data on [3] :
(i) the number of cases in which confiscation was adjudicated;
(ii) the number of corruption cases in which confiscation was adjudicated.
If you do not collect general figures for the entire country, please provide samples.
(i) no available data
(ii) Since the establishment of the National Anticorruption Prosecutor’s Office until present, the courts ordered the confiscation in 54 corruption cases.  
2.3 International co-operation
2.3.1 When your country is the requesting state: describe your country's legal framework and systems applicable to request for international legal assistance concerning confiscation measures in relation to corruption offences.
When Romania is the Requesting State, the Romanian judicial authorities send their request for rogatory commission to the competent Romanian Central Authority. The Romanian Central Authority performs the international conformity check of the request and sends it to the Central Authority of the Requested State. As mentioned above, in case of emergency, the Romanian judicial authorities may send their requests for rogatory commissions directly to the foreign judicial authorities.
These procedural rules are applied in all cases, including in what concerns the confiscation measures in relation to corruption offences.
2.3.2 When your country is the requested state: describe your country's legal framework and systems applicable to request for international legal assistance concerning confiscation measures in relation to corruption offences.
When Romania is the Requested State, the competent central authorities receive the request for rogatory commission and send it to the judicial authority. Art. 170 of Law no. 302/2004 provides that the goods that emerge from the commission of the offence that is the object of the request for rogatory commission shall be confiscated according to the legislation in force. After the request is solved by the Romanian judicial authority, the competent Romanian central authority will inform the foreign central authority of the outcome of the request.  
3 Money laundering
3.1 Describe your legal provisions pertaining to the criminal offence of money laundering and indicate which of the corruption offences listed below predicate offences are for money laundering purposes. Please provide the specific legislation or case law (in English or French).
According to Law no. 656/2002 on the prevention and sanctioning of money laundering, the National Office for Prevention and Control of Money Laundering (hereinafter, the Office) is the competent institution for gathering, analyzing and processing the information on money laundering offences. When there are serious grounds of money laundering , this information shall be communicated to the General Prosecutor of the Prosecutor’s Office attached to the High Court of Cassation and Justice.
The obligations to report are ruled by the Law no 656/2002, as following: when the employee of a legal entity or one of the natural persons mentioned at article 8 have any suspicions that a transaction, which is on the way to be performed, has the purpose of money laundering, he shall inform the person appointed according to article 14 para. 1, who shall immediately notify the National Office for the Prevention and Control of Money Laundering, which shall confirm the receiving of the notification. The persons mentioned at article 8, who know that an operation which is to be made aiming at money laundering can do this operation without prior informing the Office, if the transaction is necessarily to be made immediately or its postponing could obstruct the efforts of the beneficiaries of the suspicious transaction. These persons are compelled to notify the Office immediately, but no later than 24 hours on the made transaction, mentioning also the reason for not informing it, according to article 3.
In the Romanian legislation on money laundering, there was adopted the all crime approach, as for the predicate offences.
According to article 23 of the Law no. 656/2002, the following shall be considered as offence of money laundering and shall be punished with 3 to 12 years imprisonment:
a) the conversion or transfer of property, knowing that such property is derived from criminal activity, for the purpose of concealing or disguising the illicit origin of property or of assisting any person who is involved in the commission of such activity to evade the prosecution, trial and punishment execution;
b) the concealment or disguise of the true nature, source, location, disposition, movement, rights with respect to, or ownership of property, knowing that such property is derived from criminal activity;
c) the acquisition, possession or use of property, knowing, that such property is derived from criminal activity;
Association to commit or initiation of an association, adhesion, or abetting in any kind of such an association for the purpose of committing the money laundering offence, shall be punished with 5 to 15 years of imprisonment. The attempt shall be punished. 
Offences
Yes / No
Active bribery of domestic public officials
  Yes
Passive bribery of domestic public officials
  Yes
Bribery of members of domestic public assemblies
  Yes
Bribery of foreign public officials
  Yes
Bribery of members foreign public assemblies
  Yes
Active bribery in the private sector
  Yes
Passive bribery in the private sector
  Yes
Bribery of officials of international organizations
  Yes
Bribery of members of international parliamentary assemblies
  Yes
Bribery of judges and officials of international courts
  Yes
Trading in influence
  Yes
Other corruption offences[5]:
v     Corruption offences (trading in influence, accepting and soliciting bribes, receiving of undue goods) – art. 6-9 of the Law no. 78/2000
v     Offences assimilated with the corruption offences (art. 10 of the Law no. 78/2000)
v     Offences directly connected with the corruption offences (art. 17, e, of the Law no. 78/2000)
  Yes
3.2 Are these offences also predicate offences if they are committed outside your jurisdiction?
Yes. According to the legal provisions, if the perpetrator is a Romanian citizen or if, possessing no citizenship the perpetrator has residence in Romania; our criminal law applies even though the offence is committed outside Romania. The same is the case in what concerns the offences against the Romanian state security or against a Romanian citizen's life, or which seriously damaged the physical integrity or health of a Romanian citizen and which are committed by a foreign citizen or by a person without citizenship and who is not residing in Romania. The initiation of criminal proceedings for the crimes described must be preliminarily authorized by the General Prosecutor. 
The criminal law also applies to other offences committed outside Romania by a foreign citizen or by a person without citizenship and who is not residing in Romania, if:
a) The respective action is also considered a crime by the criminal law of the country where the action was committed;
b) The perpetrator is in the country[6].
For offences against the Romanian state interests or against a Romanian citizen, the accused can be sued also in case that his extradition has been obtained.    
3.3 Please, list the institutions compelled to report suspicious transactions and describe relations between the Financial Intelligence Unit (FIU) and law enforcement authorities, indicating in particular whether the former is obliged to transmit to the latter information or suspicions on possible corruption cases.
According to the provisions of art. 8[7] of the Law no. 656/2002 on the prevention and sanctioning of money laundering (see Annex VI), the following reporting entities are under obligation to anti-money laundering requirements:
a) banks, foreign banks branches and credit institutions;
b) financial institutions, such as: investment funds, investment companies, investment administration companies, depositary companies, custody companies, securities companies, pension funds and other such funds, which perform the following operations: crediting, including inter alia, consumption credit, mortgage credit, factoring, financing of commercial transactions, including forfeiting, financial leasing, payment operations, issuing and administration of payment means, credit cards, travellers cheques and other alike, granting or undertaking of guarantees and underwriting of commitments, transactions on own account or on the clients account using the money market’s instruments, cheques, payment orders, deposit certificates, etc., foreign exchange, derivatives, financial instruments related to foreign exchange rates or interest rates, securities, participation to the issuance of shares and services related to the issuance, consultancy on capital structure for enterprises, industrial strategy, consultancy and services in the field of mergers and acquisitions of enterprises, brokerage on inter-banking market, portfolio administration and consultancy on portfolio administration, custody and administration of securities;
c) insurance and reinsurance companies;
d) economic agents performing gambling and pawning activities, trading in works of art, precious metals and stones, dealers, tourism operators, services providers and any other similar activities involving movement of values;
e) natural and legal persons providing legal, notarial, accounting, financial and banking advice, notwithstanding their professional secrecy legal provisions;
f) persons with attributions in the privatisation process;
g) post offices and legal persons who provide money transmission/remittance services in ROL or foreign currency;
h) real estate agents;
i) state treasury;
j) foreign exchange offices (« bureaux de change »);
k) any other natural or legal person, for acts and deeds committed outside the financial and banking system. 
The professional secrecy related to the entities mentioned in article 8 is not opposable to the Office, permitting to the Office to ask the persons referred to in art.8, as well as the competent institutions, data and information necessary to perform its competences provided by the law (seeart. 5 para. 3 of the Law no. 656/2002 in Annex VI).
The Office shall analyse and process the information received, and if there are serious grounds of money laundering, the information shall be immediately submitted to the General Prosecutor’s Office attached to the High Court of Justice and Cassation. The Office has the obligation to transmit to the General Prosecutor’s Office attached to the High Court of Justice and Cassation, or as appropriate, to the NAPO, on their request, data and information obtained according to the provisions of this law (see art. 6 para. 1 and para. 5 of the Law no. 656/2002, in Annex VI ).
For the purpose of creation a new inter-institutional framework and in order to strengthen internal cooperation, 15 protocols and conventions were concluded between the National Office for Prevention and Control of Money Laundering with law enforcement agencies, such as Customs National Authority, National Securities Commission, National Anti-Corruption Prosecutor’s Office, Insurance Supervising Commission, General Inspectorate of Border Police, Romanian General Inspectorate of Police, State’s Active Capitalization Authority, Financial Guard, Ministry of Justice. 
As regards the relationship between the law enforcement agencies and reporting entities, the provisions of article 37 of the Law no. 485/2003, amending the Law no. 58/1998, set up the specific requirements concerning the professional secrecy. 
In what regards the banks, the Law no. 485/2003 (amending and supplementing the banking law) stipulates also in the new art. 371 that: In the case of criminalproceedings or at the written request of the prosecutor or of the court or, as the case may be, of the criminal investigation agencies, based on the approval of the prosecutor, the banks shall provide information subject to professional secrecy.

3.4 For the last three years where information is available, please indicate how many money laundering (i) investigations, (ii) prosecutions and (iii) convictions have been made in relation to the predicate offence of corruption.
The National Office for Prevention and Control of Money Laundering, sent, in the period 2001-2004, to the Prosecutor’s Office attached to the High Court of Cassation and Justice 42 reports, such as:
-         32 reports related to corruption offences;
-         10 reports related to offences assimilated with corruption offences. 
The Prosecutor’s Office attached to the High Court of Cassation and Justice sent to trial 20 persons in 2002, 7 in 2003, and 23 in 2004. In 2003 there was one person convicted with imprisonment from 5 to 10 years, and in the I-st semester of 2004, there was one conviction with imprisonment from 5 to 10 years. 
On corruption offences of NAPO’s competence, in 2004, the Office sent a number of 7 reports related to offences directly connected to corruption offences to NAPO. 
During the 1st of September, 2002 (the date of its creation) – 1st of September, 2004, the NAPO prosecuted a number of 14 cases on money laundering having as predicate offence corruption deeds. 5 of these caseswere sent to trial, but no final court decision was yet passed.
Part II: Public administration and corruption 
1 Anti-corruption policy
1.1 Does the constitutional/legal system set basic or general principles regulating the functioning of public administrations?
The Romanian Constitution[8], republished, provides in Title 1, General Principles, article 1 para 4: “The State is organized on the basis of the separation and balance of powers – legislative, executive and legal system. Also, in Title II, chapter V, Public Administration, the Constitution provides for regulations concerning central public administration and local public administration. According to article 116, Section I of this chapter, Specialized central public administration, the ministries shall be organized only in subordination of the Government. Other specialized agencies at central level may be organized in subordination of the Government or Ministries, or as autonomous administrative authorities. As far as the functioning of public administration is concerned, the Constitution stipulates that the ministries are set up, organized and functional in line with the Romanian law and the Government and the ministries, with the consent of the Court of Accounts, can create specialized structures under their command, only if allowed by the law.  
The functioning of the Ministry of Administration and Interior is regulated by Law no. 604/2003 concerning the organization and functioning of the Ministry of Administration and Interior. 
Pursuant to article 120, section II, chapter V of Romanian Constitution, the public administration in territorial-administrative units shall be based on the principles of decentralization, local autonomy and de-concentration of public services.  
The provisions referring to the functioning of the local public administrative authorities are stipulated by Law no. 215/2001 of local public administration, regulating the general regime of local autonomy, as well as the organization and functioning of the local public administration authorities. The law states that the public administration in the territorial-administrative units shall be organized and function on the grounds of the principles of the local autonomy, decentralization of public services, eligibility of the local public administration authorities, legality and consultation of the citizens when solving local matters of local interest. 
The concept of local autonomy implies the right and effective capacity of the local public administration authorities to solve and manage, in the name and interest of the local collectives they represent, public matters, under the terms of the law. This right is exercised by the local councils and mayors, as well as by county councils, as local public administration authorities elected by universal, equal, direct, secret and freely expressed vote.
The Law no. 52/2003 on the decisional transparency in the public administration established the minimal procedural rules applicable for ensuring decisional transparency within the authorities of the central and local public administration, elected or appointed, as well as of other public institutions that use public financial resources, in the reports established between them with the citizens and their legally constituted associations.
1.2 Has your country an anti-corruption strategy targeting public administration, at national or sub-national level (federated states, regional, local etc.)? If possible, please provide official translations (English or French) of the main relevant documents.
The National Anti-Corruption Strategy 2001 – 2004 (NACS I)[9] consists in a set of norms, documents and action plans against corruption, adopted by the Romanian Government and comprises:
        I.      The National Programme for Preventing Corruption and the National Action Plan against Corruption for 2001 – 2004, adopted by GD no. 1065/2001;
     II.      The NACS I first update - Measures for accelerating the application of the National Anti-Corruption Strategy (MAANACS) – the main domains on Justice, Public Administration, Business Environment and Transparency, adopted in the Government Session of 12 December, 2002;
   III.      The NACS I second update - The Programme for implementing Law no. 161/2003 adopted through the GD no. 504/2003.
On the basis of the objectives provided by the National Anticorruption Strategy, all institutions involved in the corruption prevention and countering formulated sectoral action plans. In order to adopt the specific measures regarding corruption and related offences, in each of the vulnerable sectors identified according to paragraph 2.3. of the National Programme on Preventing Corruption adopted by GD no. 1056/2001, in the area of public administration there were carried out activities related to:establishing the right of property upon lands; public acquisitions; controls and verifications of possible infringements of the normative acts; ensuring transparency and promoting the participation of civil society in decision making process; the system of recruiting, hiring, promotion, retirement of public officials; the access to information of public interest etc.
Currently, it is undergoing the process of elaboration of the National Anticorruption Strategy for 2005 – 2007 (NACS II), which also shall provide for measures of eliminating corruption within public administration.
1.3 Please indicate the scope of the concept of "public administration" in your country. Is there a legal or constitutional definition?
The notion of public administration refers to both legal acts and material deeds executing the law by issuing subsequent norms or by organizing or directly delivering services and the authorities involved: President, Government, ministries and other bodies subordinated to Government, prefect, local authorities (mayor, local council, county council) and the institutions subordinated to them.  
According to Constitutional provisions, the President of Romania shall guard the observance of the Constitution and the proper functioning of the public authorities. To this effect, he shall act as a mediator between the Powers in the State, as well as between the State and society (article 80, para 2, chapter II, Constitution). In the exercise of his powers, the President of Romania shall issue decrees (article 100 chapter II, Constitution). 
The Government consists of the Prime Minister, Ministers, and other members as established by an organic law. The Government shall, in accordance with its Government programme accepted by Parliament, ensure the implementation of the domestic and foreign policy of the country, and exercise the general management of public administration. In the exercise of its powers, the Government shall co-operate with the social bodies’ concerned (article 102 Constitution). The Government shall adopt decisions and ordinances.  
The Prefect is the representative of Government at local level and runs the decentralized public services of ministries and other central bodies within administrative- territorial units (article 26 of Law no. 215/2001 on local public administration).  
According to article 21 of Law no. 215/2001 the public authorities that accomplish the local autonomy and public works in communes and towns are Local Councils as deliberative authorities and Mayors, as executive authorities. The local council adopts decisions and the mayor issues dispositions. In every county, it is constituted a County Council for the coordination of the activity of local councils, in order to accomplish the county interest public services. 
1.4 How does your country assess the effectiveness of anti-corruption measures targeting public administration?
Since October 2003, the Ministry of Justice, together with the National Control Authority elaborates, based on the data transmitted by the public institutions, a quantitative and qualitative evaluation of the efficiency of the measures for preventing and fighting against corruption, submitting to the Government the weekly reports on the progresses registered in the implementation of the components of the National Anticorruption Strategy. The conclusions of these reports are presented in press releases on the official site of the Romanian Government, www.guv.ro  and there have been organised press conferences at the Ministry of Justice.
At the level of the Ministry of Justice there functions a specialised structure of centralization, analysis, synthesis and capitalisation of the relevant information contained in the weekly reports received on the measures provided by the National Anticorruption Strategy. In the present, it was elaborated a form of centralised report in Excel, with the monthly progresses (RISP) which will soon be functional and implemented through the law. 
In the same time, it takes place the evaluation and analysis of the implementation of NACS I, 2001 – 2004 under the coordination of the National Council for Crime Prevention, in order to elaborate NACS II 2005-2007.
Also, the Government Decision no. 1362 from 2004 on setting up of the National Information Centre of the Ministry of Administration and Interior and getting operational the E-Administration System was adopted. According to article 1, paragraph (4), the National Information Centre of the Ministry of Administration and Interior has the role of applying Government Strategy for getting automated the central and public administration and to monitoring its implementation in the competence field of the Ministry of Administration and Interior. This institution has the responsibility of managing information systems for inter-institutional co-operation, in relation with other institutions involved, according to legal regulations, as well as implementing at national level of information projects from competence area, according to the National Strategy for promoting the new economy.  
2 Transparency in public administration
2.1 Please, specify the ways the persons concerned and the public in general have at their disposal for accessing administrative information, as well as the legislative framework applicable. Is there a charging regime? If so, please provide details.
For guaranteeing the fundamental rights and freedoms, Romanian Constitution stipulates in article 31 the right to information (called in the constitutional legal doctrine right-safeguards). The constitutional framework was strengthened through entering into force of an important normative act which is to supplement the legislative vacuum, especially as regards exercising the right to information, by the entrance into force of the Law no. 544/2001 on free access to public interest information[11]  and Methodological Norms for its application, approved by Government Decision no. 123 from 2002. Law no. 544/2001 is the special legal framework for enforcing the stipulations of paragraph 1 and 2 of Article 31 from Constitution, according to which “The right of person to have access to any public interest information cannot be restricted“ and “Public authorities, according to their competencies, have to ensure the correct information of citizens on public affairs and personal issues. “ The right to information, as it is regulated in Law no 544 from 2001, can be exerted at request or ex officio. For its exerting, some general and special rules are set up. The scope of Law no. 544 from 2001 includes the access to public interest information (with some exceptions), possessed by public authorities and institutions, which are defined in Article 2. By public interest information, it is understood any information that refers to activities or derives from the activities of a public authority or institution, irrespective of the support or the form or the modality of expression of information.
The access to public interest is given either at request or ex officio (for certain information categories expressly stipulated by Law no. 544 / 2001). The public interest information which is communicated ex officio is made public by posting up, publishing or consultation, being clearly enumerated in Law no. 544 from 2001, as follows:
a)      normative acts which regulates the organisation and functioning of the public authority or institution;
b)      organisational structure, attributions of departments, program of functioning,, audiences program of public authority or institution;
c)      name and surname of persons from the leadership of the public authority or institution and of the responsible … with dissemination of public information;
d)      contact co-ordinates of public authority or institution, respectively name, headquarters, telephone, fax, e-mail address and web address;
e)      financial sources, budget and accounting balance;
f)        own programs and strategies;
g)      list of public interest documents;
h)      list of categories of documents issued and/or managed, according to the law;
i)        ways of contesting the decision of public authority or institution in case that the person considers himself damaged on the right to access to the solicited public interest information;
Any person has the right to inquire and obtain (…) public interest information.” being law subjects who are recognised the right to information, according to Article 6 from Law no. 544 from 2001. Accordingly, the right to information is guaranteed to all physical and legal persons, inclusively researchers or mass – media representatives. In correlation with the right to information of the persons, the obligation of the public authorities and institutions to assure, at request, the access to public interest information requested in writing or verbally is set up. 
The provisions of Law no. 233/2002 for the approval of the Government Ordinance no. 27/2002, referring at the regulation of the solving activity of the petitions put at the disposal of the citizens a general procedure of notification, referring at the corruption deeds committed by the staff of the public authorities and instituted the legal obligation of these authorities to guarantee the petitions detailed verification and solution within 30 days.
Also, by Law no. 52/2003 on decisional transparency in public administration[12], are established the minimal procedural rules applicable for ensuring the decisional transparency within the authorities of the central and local public administration, elected or appointed, as well as within other public institutions that use public financial resources in the relation with the citizens and their legal associations. This law aims at raising the responsibility degree of public administration as regards the citizen, as the beneficiary of the administrative decision, stimulating the active participation of the citizens in the administrative decision –making and in the process of issuing normative acts, as well as raising transparency degree at the level of the whole public administration. Also, the law contains stipulations on procedures referring to participation of citizens and legal set-up associations to the process of issuing normative acts and the decision-taking process.
Other relevant legislative documents: Government Emergency Ordinance no. 24 from 2004 on raising the transparency in exerting public dignities and functions by intensifying corruption preventing and combating measures; Government Decision no 1362 from 2004 on setting up the National Information Centre of the Ministry of Administration and Interior and getting operational the E-Administration System.
2.2 What is the practice of public authorities (national, regional or local government level) regarding public consultation when taking decisions? What are the mechanisms used?
The Constitution regulates the legislative initiative in Article 74 and stipulates the ways this fact is made.
By the Law no.3/2000 it is organized the development of the referendum. The population may be asked related to one or several issues, but also concerning a national interest matter and a local interest matter.
In the Law no.215/1991 regarding the local public administration it is mentioned that the decisions of the local council are posted up within the legal terms, and the meetings are public. For this purpose it is used also the media.
In the second section of the second chapter within the Law no. 52/2003 regarding the decisional transparency in public administration the provisions concerning the participation to the taking decisions process are stipulated. The conditions for the interested persons to take part to the public work sessions are:
a)      The announce regarding the public session is posted up to the center of the public authority, inserted in its personal site and conveyed to mass-media at least three days before the carrying on of the public session;
b)      This announce has to be brought to citizens’ knowledge but also to the legal built associations’ knowledge which presented written suggestions and proposals having a recommendation value related to the one of the public interest area which follows to be debated in public session;
c)      The announce will contain the date, the hour and the venture of the public session and also the agenda.
The broadcast of the announce and the special invitation of some persons to the public session are in the charge of the assigned responsible for the relation with the civil society, the participation of the interested person to the public sessions being possible in the limit of the available places in the session hall, in the priority order gave by the interest of the legal built associations as against the topic of the public session established by the person who chairs the session. The priority order can’t restrict access of the media to the public session. The person who chairs the session provides the participants, by own will, with the possibility to express themselves regarding the issues on the agenda.
The taking of the administrative decisions is the exclusive task of the public authorities, the points of view expressed by the guests and the participants, by own will, within the public sessions having the value of recommendation. The minute of the public session, including the vote of each member and except the secret vote cases shall be posted up to the center of the public authority and published in its own site.
The public authorities have to draw up and broadcast an annual report concerning the decisional transparency, which will include at least the following issues:
a)      The total number of the received recommendations;
b)      The total number of the recommendations included in the draft normative acts and in the content of the taken decisions;
c)      The number of participants to the public sessions;
d)      The number of public discussions about the draft normative acts;
e)      Whenever the public authority has been brought to justice for inobservance of the provisions of the present law;
f)        The proper evaluation of the partnership with the citizens and with their legal built associations;
g)      The number of the non-public sessions and the reason of their restriction.
The annual report concerning the decisional transparency shall be broadcast on the personal site, by posting up to the center of the public authority in a place with public access or by presenting in public session. 
3 Control of the public administration
3.1 Do appeal systems exist to challenge administrative decisions (application to the same authority, appeal to the higher authority, appeal before a court), and if yes, how are they applicable to the various layers described?
Constitutional provisions
According to article 52 of Romanian Constitution, any person injured in his/her legitimate rights or interests by a public authority, by means of an administrative act or by the failure of a public authority to solve his/her application within the lawful time limit, is entitled to the acknowledgement of his/her claimed right or legitimate interest, the annulment of the act and reparation for the damage. Also, according to article 21 every person is entitled to bring cases before the courts for the defense of his legitimate rights, liberties and interests. The exercise of this right shall not be restricted by any law. All parties shall be entitled to a fair trial and a solution of their cases within a reasonable term. Administrative special jurisdiction is optional and free of charge.
Administrative control
The administrative control is exercised by the hierarchical superior administrative bodies, having as object the whole activity of the subordinated bodies, both legal acts and material deeds, over both legality and opportunity. Following the administrative control, illegal acts shall be annulated or suspended, when the law admits the suspension.
Specialized administrative control
It is carried out by the state inspectorates and it is focused on legality aspects, but is not based on subordination relations. The annulment of the illegal acts is made only in the cases expressly provided by law.
The jurisdictional appeal
According to Law no. 29/1990 on administrative contentious, any natural or legal person, if considers him/herself injured in his/her rights provided by law through an administrative act or through the refuse of an administrative authority to solve his/her petition on a right provided by law in 30 days, may address to court for the annulling of that act, the recognition of the claimed right and the reparation of the damaged caused by that act. But, before asking the court to annul the act or to oblige the authority to issue the act, the damaged person has to address first to the issuing authority in a period of most 30 days from the date of the communication of the act or from the date when the period of 30 days for the authority to issue the act had expired. This complaint must be solved by the issuing authority within 30 days. If the injured person is not satisfied by the solution obtained from the issuing authority may notify the court in 30 days since the solution was communicated to him/her.
The Law no. 340/2004, regarding the institution of the prefect, in the Article 26 provides that in exercising the prerogatives related to the lawfulness control of the administrative acts issued by the local and county public administration authorities, the prefect may bring to justice, to administrative disputing claims court, these acts if he considers them unlawful, except the acts of current administration. The prefect shall ask the authorities that issued the disputed act, with the necessary motivation, to re-examine the act he considers unlawful for amending or revoking it by case, at least ten days before acting in justice. The prefect shall take the action in justice within 30 days of the act communication. The action is stamp tax-free.
In the same time, according to article 3 of Law no 52/2003 any person which considers to have a right violated provided for in this law, may complain in the conditions of the Law on the administrative contentious no 29/1990, with the ulterior amendments and supplements. The complaint and the second appeal are judged in emergency and are with no tax stamp. Also, the article 14 provides that it is a disciplinary violation and is sanctioned, according to the provisions of Law no 188/1999 on the statute of the public servants or, if the case may be, according to the labor rules, the deed of the civil servant which does not allow the access of the persons to the public sessions or puts obstacle to the involvement of the persons interested in the process of drafting the normative acts of public interests, in the conditions of the present law.
Similar provisions can be found in the Law no. 215/2001 with the amendments and supplements brought by the Emergency Ordinance no.74/2001, in the Law no.738/2001, in the Law no.216/2002, in the Law no.161/2003 and in the Law no.141/2004.
3.2 If you have the institution of an Ombudsman, what are his/her competences in relation to the prevention and detection of corruption?
According to the provisions of Law no. 35/1997 on the organization and functioning of the Ombudsman, with subsequent amendments and completions, the Ombudsman has as main objective citizen rights and freedoms protection in their relations with public authorities. Ombudsman is a public autonomous and independent authority and in exercising its attributions does not serve as a substitute for public authorities. 
Ombudsman has the following attributions:
a)      co-ordinates the Ombudsman activity;
b)      receives and distributes complaints from the infringed persons by violating citizen rights or freedoms by the authorities of public administration and makes a decision with respect to them;
c)      monitors the legal resolution of the complaints received and requires the authorities or public administration civil servants in question to cease the infringement of citizen rights and freedoms, to reinstate the petitioner and take remedial actions;
d)      represents the Ombudsman in front of the Deputy Chamber, the Senate and the other public authorities, as well as in relations with natural or legal persons;
e)      employs Ombudsman staff and exercises the right of disciplinary authority on them;
f)        exercises the function of main credit holder;
g)      fulfills other attributions provided by law or the Regulation on the organisation and functioning of the Ombudsman. 
If the Ombudsman ascertains, on the occasion of the investigations carried out, voids in the legislation or serious corruption acts or violation of the state’s laws, will draft a report comprising the ascertained facts for the presidents of the two Chambers of the Parliament or, as the case may be, to the Prime Minister.
If the Ombudsman ascertains that the resolution of the complaint it was addressed falls under the judiciary, it can address, as the case may be, to the Minister of Justice, Public Ministry or the president of the court of law, which are compelled to present the measures taken. 
4 Recruitment, career and preventive measures
4.1 Are there specific procedures for the selection and recruitment of public officials, e.g. screening of personal (criminal) records? Are such procedures standard or are they only used for public functions susceptible to corruption?
Law no. 188/1999 on the Statute of civil servants, with subsequent amendments and completions, regulates the general regime of judicial reports between civil servants and authorities and public institutions from central and local public administration and has as main objective of ensuring, according to the legal provisions, of a stable, professional, transparent, efficient and impartial public service, citizen-oriented as well as authorities and public institutions from central and local public administration- oriented.
According to the legal provisions, the civil servant is the person appointed, as provided by Law 188/1999, in a public position. The person whose labor contract is terminated from on grounds that go beyond his/her fault remains with the quality of a civil servant, continuing to be part of the civil servants reserve body.
In accordance with art 8 para (1) from G.D. 1209/2003 regarding the organization and development of the civil servants’ career, in order to participate in the contest organized for occupying a public position, the candidates must have a contest record which will compulsory include the criminal record.
Law no. 188/1999 stipulates that a public position can be held by the person who fulfills the following conditions:
a)      has the Romanian citizenship and residence in Romania;
b)      has a good knowledge of the Romanian language, written and spoken;
c)      is minimum 18 of age;
d)      has full ability to work;
e)      is in good health condition for the public position he/she applies for, certified by a medical examination;
f)        fulfills the educational conditions stipulated by law for public function;
g)      fulfills the specific conditions for holding the public function;
h)      has not been convicted for an offence against humanity, state or a duty related authority that prevents the rendering of justice, forgery offences or corruption acts or an offence perpetrated intentionally, that would render it incompatible with exercising the public function, except from the case when the person recovers his/her civil rights;
i)        was not dismissed from a public function within the last 7 years;
j)        has not developed a political policing activity, as provided by law. 
The normative act also stipulates that civil servants developing their activity within the following institutions can benefit from special statutes: 
a)      specialty structures from the Romanian Parliament;
b)      specialty structures from the Presidential Administration;
c)      specialty structures from the Legislative Council;
d)      diplomatic and consular services;
e)      customs authority;
f)        police and other structures of the Ministry of Administration and Interior;
g)      other public services provided by law.
4.2 Are public officials trained and informed regarding fundamental principles inherent to, and the ethics of public service? Please, indicate how and at which stage (university, public servants' school, ongoing training etc.)
Concerning the civil servants’ training related to the fundamental principles and ethics of public service, the legislation stipulates:
q       Art 52 from Law 188/1999, republished provides that the internship period shall be aimed at testing the professional skills in fulfilling the tasks and responsibilities of a public position, practical education of debutante civil servants, as well as at getting debutante civil servants familiar with the specifics of the public administration and its requirements;
q       Also, the civil servants are obliged to attend professional development courses held by the National Institute of the Administration or any other institutions mandated to this end that shall be at least seven days in a year.
 
Initial training in the public administration is required for occupying a leading public position: in accordance with art 58 par (1) point a) from Law 188/1999, are entitled to run in the competition for vacant leading public positions the persons who graduated from special public administration training and development programs of the National Institute of the Administration, the local continuing professional development centres of the local public administration as well as from other specialized Romanian or foreign bodies. 
Art. 31 of Law no. 188/1999 on the statute of civil servants stipulates:
(1)   Civil servants have the right to continuously improve their professional training.
(2)   During the time that civil servants attend different courses on professional training, they benefit from wage rights if they are:
a)      organized at the initiative or in the interest of the public authority or institution;
b)      attended at civil servant’s initiative, with the agreement of the manager of the public authority or institution;
c)      organized by the National Institute of Administration, regional centers for continuous training for local public administration, as provided by law, or other specialized institutions in the country and abroad;
(3)   if the training and the continuous professional training, as provided at par (2), are organized outside the locality where the public authority or institution has its premises, civil servants benefit from rights of secondment, as stipulated by law.
(4)   To cover the expenses for training and continuous training of civil servants, organized according to par (2) letter a) and c), public authorities and institutions have the obligation to provide in their yearly budget the necessary amounts for the expenses in question.
4.3 Do provisions establishing a system of regular, periodical rotation of staff employed within public administrations considered vulnerable to corruption exist?
No. Within the laws regulating the statute of civil servants or with special statute, their stability on the function they hold is stipulated.  
The Romanian legislation does not comprise provisions establishing a system of regular, periodical rotation of staff employed within public administration considered vulnerable to corruption. Law 188/1999 republished sets the general provisions for the modification of the work relations, as well as legal instruments for ensuring the mobility within the civil servants body. In accordance with art 75 from Law 188/1999 the modification of work relations may take place through:
Ø      Delegation - shall be ordered in the interest of the public authority or institution where the civil servant is employed, for a period of maximum 60 calendar days in a year
Ø      Secondment - shall be ordered in the interest of the public authority or institution in which the civil servant is to carry out his/her activity, for a period of maximum 6 months. During a calendar year, a public servant may be seconded for a period longer than 6 months only with his/her consent given in writing.
Ø      Transfer - may take place - in work interest;
- at the request of a civil servant.
Ø      Assignment within other department of the public authority or institution – ensures the mobility of the civil servants within the same institution and represents also a managerial instrument to accommodate to the organization’s necessities. The two modalities of achieving it are the permanent assignment, which requires the written consent of the civil servant, and the temporary assignment shall be ordered based on a motivation, in the interest of a public authority or institution, by the leader of the public authority or institution, for a period of maximum 6 months within a year, by observing the professional experience and salary the civil servant has.
Ø      Temporary performance of a leading public position – has two forms:
-         Temporary performance of a vacant leading public position, for a period of maximum 6 months until the vacant public position shall be occupied, upon the law
-         Temporary performance of a leadership public position, which holder is suspended for the period of suspension of the holder 
However there are legal provisions ensuring the mobility for certain public positions.
In accordance with art 15 para. (1) from Law 340/2004 regarding the prefect institution, the members of the prefects’ body, the deputy prefects’ body respectively are applied the mobility in the public position, being available for the appointments the Government considers adequate.
4.4 What are the measures in place to prevent conflicts of interests and incompatibilities between functions, in particular between the public and private sectors.
The regulations with general character regarding the rights, the professional obligations, the behavior and incompatibilities of the public officials are regulated in detail by Law no. 188/1999 on the Statute of the public officials, modified by Law no. 161/2003, Law no. 7/2004 on the Conduct Code of the public official and Law 171/2004. 
The conflict of interests and the incompatibilities’ regime is regulated in Title IV from Law 161/2003 on certain steps for assuring transparency in the performance of high official positions, public and business positions, for preventing and sanctioning corruption. Conflict of interests and the regime of the incompatibilities in the performance of the dignities and public offices are provided in the Law 161/2003 establishing precise obligations that had to be fulfilled in due time, under sanction, by specific categories of officials, such as Parliamentarians, Government Members, Public Officials, Judges, Prosecutors etc. 
The Law 161/2003 provides that the public official must abstain from any manifestation of no loyal concurrence or that generates conflicts of interests. The public official has the duty not to destabilize the honor, reputation and dignity of the authority or public institution manager, of the other public officials and of the wage-earners within the public authority or institution. In the exercise of the decision-making prerogatives, for the control and elaboration of the projects of normative documents the public official shall not aim at the obtaining of benefit or advantages or the production of material or moral prejudices to other persons. 
The public official has the obligation:
- not to express public appreciations that are not according to reality, about the activity of the public authority or institution;
- not to use confidential information in the didactic or publishing activity developed in his own interest;
- not to disclose information that are excepted, according to law, from the citizens’ free access;
- not to use the official position he holds or the relations he has established in the exercise of the public function in order to influence the internal or external administrative enquiries or in order to determine the taking of a certain measure by the controlling bodies.
- not to favor or disfavor the access or promotion on criteria of relationship, affinity or discriminatory in public functions.
- the interdiction to acquire, grant or lease a good found in the state property or of the administrative-territorial units in the event, by the nature of the work attributions, he participated at the activities prior to the achievement of these operations. In a similar way, he cannot acquire goods that were confiscated by the public authority or institution in which he develops his activity.
- the interdiction to supply information referring to assets of public or private property of the state and administrative – territorial units submitted to the operations of sale, granting or lease, in other conditions than those stipulated by law.
- the interdiction to grant assistance and consultancy to the natural or legal persons in view of the promotion of legal actions or of other nature, against the state, as well as of the public authority or institution in which he develops his activity.
The law provides that the obligations must be accomplished in due time, under a sanction, by the following categories of persons:
-                                            the members of the Parliament, Government, the state Secretaries and the persons who perform functions assimilated to these ones, the prefects and their deputies, officials chosen at local level, public officials;
-                                            the members of the Court of Audit, the chairman of the Legislative Council; the Ombudsman and his deputies; the members of the Council of Concurrence; the members of the National Commission for the Real Estates Values; the Governor, the prime vice-governor, the vice-governors, the members of he board of directors and the employees with managerial functions of the National Bank of Romania; the manager of the Romanian Information Service, the prime-deputy and his deputies; the members of the Council; the members of the National Audiovisual Council; the members of the board of directors and of the executive committees of the Romanian Broadcasting Stations Company and of the Romanian Television Company; the members of the National Council College for the study of the former archives of the security; the general manager and the members of the board of directors of the national press Agency ROMPRES;
-                                            the presidential counselors and the state counselor within the presidency 
The civil servant (as defined in art 79 par (1) from Law 161/2003) faces a conflict of interests situation if:
Ø      He is called to solve demands, to make decisions or to participate in making decisions concerning legal entities and individuals with whom he has patrimonial relations
Ø      Participates within the same committee, set up according to the law, together with civil servants who are spouse or close relative.
Ø      His or his spouse or his close relatives’ patrimonial interests can influence the decisions he must take in performing the public position. 
In case a conflict of interest arises, the civil servant must refrain from solving the demand, making the decision or participating in making the decision and he must inform immediately his hierarchic superior to whom he is directly subordinated. The latter must take the necessary measures for impartiality performing the public position, within maximum3 days from the date he knew about it. In such situation, the head of the public authority or institution, upon the proposal of the hierarchic superior to whom the respective civil servant is directly subordinated, shall appoint another civil servant, with the same knowledge and experience. The non-observance of these provisions may entail the disciplinary, administrative, civil or criminal liability, upon the law.
The incompatibilities’ regime regarding the civil servants is regulated by art 94 from Law 161/2003 as follows:
Ø      The quality of civil servant is incompatible with any other public position except for the one that he/she was appointed on, as well as for the public dignity positions;
Ø      The civil servant is not entitled to hold another position and cannot perform other paid or non-paid activities, as follows:
-          within the public authorities and institutions
-          within the dignitary's cabinet, except for when he/she is suspended from the public position, upon the law, during his/her appointment
-          within the state controlled companies, commercial partnerships or within other profit making organizations in the private and public sector, within family association or as authorized individual.
-          as a member of an economic interest group.
Law 171/2004 provides that the incompatibilities regime is not applicable to the civil servant who is appointed by an administrative act, issued upon the law, to represent or to participate in, as representative of the public authority or institution within certain organizations or collective management boards established upon the law.
Ø      The civil servants who, in performing their public position, carried out monitoring and control activities related to commercial companies or other profit making companies as those provided in par (2) point c) are not allowed to carry out activities or provide consultancy for these companies for 3 years since the leaving of the civil servants’ body.
Ø      The civil servants are not allowed to mandate certain persons to perform actions related to the public position they hold.
Ø      At the end of the dignitary’s mandate the civil servant is re-employed on the public position he/she was holding or on a similar public position.
Art 95 par (1) and par (2) from Law 161/2003 provides that the civil servant is forbidden to develop direct hierarchical relations with his/her spouse or first-degree relative, as well as with the direct hierarchic superior who is a dignitary. The non-observance of the obligation to apply for the termination of the work relations in 60 days or to renounce to the quality of a dignitary is ascertained by the superior hierarchic civil servant, namely the prime minister, minister or prefect, who dispose the termination of the direct work relations between the dignitary and the civil servant who is his/her spouse or first-degree relative.
Currently, it is under parliamentary debates the draft law for the amending and completion of Law no. 161/2003 on certain measures to ensure transparency in the exercise of public dignities, public offices and in the business environment, to prevent and sanction corruption, which supplements and correlates the legislative framework of conflicts of interest and incompatibilities, offering efficient instruments for their notification, discovering, investigation and sanctioning. There were introduced new categories of incompatibilities, the notion of conflict of interest was redefined and extended, including now the non-patrimonial and potential interest and the situation when the conflict of interest is camouflaged by other previous or ulterior legal act. Also, the offence of false in statements of conflict of interest and incompatibilities was assimilated to corruption offences.
It is also, in the government’s discussion, the draft law on the organization and functioning of the National Integrity Council – an independent body, with legal personality, having exclusive competency in the field of investigation and control of the assets, in finding and investigating of the conflicts of interest and incompatibilities in exercising public dignities, public offices and other offices provided by law.
4.5 Are any measures in place to limit the phenomenon of public officials who move to the private sector where they can abuse their contact networks and knowledge of administrative mechanisms and decision-making processes?
There are laws on countering corruption, unlawful competition stipulating that any act of the civil servant infringing judicial, professional norms which are considered corruption acts are severely punished. The Law no 78/2000 provides the sanctions for the commission of these deeds. According to the article 11 of this law, “the deed of a person who, in carrying his duties, has the task to supervise, control or liquidate an economic private agent, to intermediate or help the exercise of commercial or financial operations by the economic private agent or to participate with capital for such an agent, if the deed is to bring him direct or indirect benefits, is punished with the imprisonment from 2 to 7 years.” According to article 12, “the following deeds are punished if they are committed to obtain for himself or other, money, goods or other undue advantages: a) making financial operations, as acts of commerce, incompatible with the office, the attribution or the task a person fulfils or making financial transactions, using information obtained within the office duties or tasks; b) using in any way, directly or indirectly, information which are not public or allowing unauthorized persons to this information.”
In accordance with art 94 par (3) from Law 161/2003 the civil servants who, in performing their public position, carried out monitoring and control activities related to commercial companies or other profit making companies as those provided in par (2) point c) are not allowed to carry out activity or provide consultancy for these companies for 3 years after leaving the civil servants’ institution.
According to article 311 of the new Criminal Code, the unjust remuneration is incriminated: the act committed by a public servant who, by virtue of his/her office, was charged with the supervision or control of a legal entity of private law, of receiving remunerated tasks from such an entity, before the completion of 3 years from the retirement, resignation, dismissal or revocation date, shall be punished by strict imprisonment from one to 3 years or by days/fine. Persons in charge of such legal entities of private law shall be considered accomplices to the commission of the act described above. 
5 Codes of conduct / ethics
5.1 Are there codes of conduct / ethics/ in your country for public functions? Or are these matters dealt with by other means?
During the past 4 years there were adopted deontological codes for all basic professions. There are more than 20 Deontological Codes [13]and many more internal normative acts introducing European professional standards. Among the most important there are the Deontological Code of Magistrates, adopted in 2001 and the Code of Conduct for civil servants, adopted by Law no. 7/2004. The majority of trade union associations and other professional organizations adopted such codes.
The objectives of these codes aim to ensure an increase of the quality of the public service, a good administration in fulfilling public interest, as well as contribute to the elimination of bureaucracy and of corruption acts in the public administration and to the consolidation of the integrity of the judiciary by:
a) regulating norms of professional conduct necessary for social and professional relations adequate for the creation and maintaining a high level of the prestige of the institution of the function and of public servants;
b) informing the public regarding professional conduct they should expect from public servants in public functions;
c) creation of a climate of trust and mutual respect among citizens and public servants, and among citizens and public administration authorities
d) increase of the responsibility and independence of magistrates
5.2 Describe the sanctions which the code(s) of conduct carry? Is there a right of appeal against the imposition of such sanctions?
In accordance with the provisions of art 24 para (1) from Law 7/2004 and of art 64 from Law 188/1999, republished, the violation of the Code of conduct triggers the disciplinary liability of the civil servants, or the contraventional, civil or criminal liability.
The civil servants are liable, in accordance with the law, if in performing their activity they breach the professional conduct rules and this produces prejudices to other persons.The Discipline committees has the necessary competence to investigate into cases of Code of conduct violation and to suggest disciplinary measures, as provided by the law.
As stipulated in art 65 par (3) from Law 188/1999 the disciplinary sanctions are:
a) written reprimand;
b) diminishing a public servant's wages rights with 5-20 % for a period of up to 3 months;
c) suspension of the right to promotion to superior salary ranges or, as the case may be, to promotion in a higher rank public position for a period of between 1 to 3 years;
d) transfer to a lower rank public position for a period of up to one year, by accordingly diminishing the civil servant's wages;
e) dismissal from a public position.
In accordance with art 68 from Law 188/1999 the civil servant dissatisfied with the sanction received may appeal to the Disputed Claims Office, requesting the annulment or modification of the sanction order or decision, as the case may be.
5.3 Does your country collect centrally information on breaches of codes, on penalties, on enforcement actions? If available, please provide statistics.
The National Agency of Civil Servants has elaborated and transmitted to the public authorities and institutions a form in order to report monthly the cases of breaching the civil servants’ Code of conduct. The data received from the public authorities and institutions are centralized and used by the Agency when elaborating the annual report. The National Agency of Civil Servants keeps within the database a record of the disciplinary sanctions received by each civil servant; in accordance with the respective data, the National Agency of Civil Servants shall issue administrative records for the civil servants, if the law provides so.
Also, the National Agency of Civil Servants elaborates and submits to the Government, in accordance with art 23 para (1) from Law 188/199 the annual report on the civil servants and public positions management which must comprise data related to:
-         the number and the object of the complaints on cases of professional conduct provisions’ violation
-         the categories and the number of the civil servants that have violated the moral and professional conduct provisions
-         the causes and the results of breaching the provisions of the Code of conduct
-         the situations when the civil servants were asked to perform under political pressure
-         the public authorities and institutions that did not observe the recommendations formulated.
 
In accordance with art 58 par (1) from G.D. 1210/2003 the chairperson of the discipline committee shall draw up quarterly activity reports on:
Ø      the number of deeds notified as misconduct;
Ø      the categories of civil servants that committed infractions of discipline;
Ø      the causes and consequences of the misconduct;
Ø      the disciplinary action proposed;
Ø      the number of notifications solved.
The activity reports provided in paragraph (1) shall be submitted to the head of the public authority or institution where the discipline committee was set up, which has to send them to the National Agency of the Civil Service within 5 days of reception. In accordance with art 20 par (1) from Law 7/2004 the Agency controls the implementation of the Code of conduct rules.
The Ministry of Administration and Interior, after synthesizing the possessed data, analyses and establishes strategies to strengthen the discipline.
For information on breaches of codes see annex no X.
5.4 How is the code inculcated into management practice?
When the infringement of a conduct norm is notified, then, if the person is a special status civil servant, a preliminary investigation shall be conducted and disciplinary sanctions shall be inflicted according to the Police Officers’ Act, and if that person is a civil servant, the established disciplinary committee shall investigate the civil servant’s breach of the code, and the manager of the institution shall inflict the penalty.
See also the previous answer on the annual report on the public office and public officials management, issued by the National Agency of Public Officials. 
6 Gifts
6.1 Are there any rules applicable to the receiving of gifts or other advantages that public officials must comply with in the course of their duties? Please describe.
In accordance with art 46 par (1) from Law 188/1999 the civil servants are forbidden to accept or ask for gifts or any other benefits directly or indirectly for themselves or for other persons, when exercising their civil service duties.
The interdiction regarding the gifts, services and advantages is provided also in art 14 from Law 7/2004: Civil servants shall not ask for or accept presents, services, favors, invitations or any other advantages for themselves, their families, parents, friends or people they have business or political relations with, which might influence their impartiality in exerting their public duties or which might stand for rewards related to their position.
In accordance with Law 161/2003 modified, the goods and services received as a present within certain protocol activities in performing the mandate or the public position, whose value go over 300 Euro each, must be declared in the wealth declaration.
6.2 If any rules and/or limits exist, are sanctions foreseen in case of infringements? If yes, please provide details.
The civil servants breaching the above-mentioned legal provisions are applied the regulations provided in chapter VII “The disciplinary penalties and accountability of civil servants” from Law 188/1999 republished. For offences committed during his/her working hours or related to his/her public position competencies, a civil servant shall be held liable under the criminal law. 
7 Reporting on corruption
7.1 Are public officials subject to an obligation to report misconduct/suspected corruption/breaches of duties or code of ethics, which they would come across in the course of their duties? What procedures are in place to regulate such reports? Are these procedures defined in legal provisions or in internal rules?
The law no. 188/1999 on public officials status provides in article 45 that the public officials have the right to refuse, in written and motivated, the fulfilling of the superior’s orders if he consider its as illegal. In case of a written order, the public official is bound to execute it, excepting the case of notable illegality, and also to inform the superior of the issuing person. 
According to Art. 263 of the Criminal Code in force, the deed of the civil servants who, finding out about the perpetration of an infringement connected to the place where they fulfill their tasks, fail to immediately notify the Prosecutor’s Office or the criminal prosecution body, shall be punished with 3 months to 5 years imprisonment, according to criminal practice law, and if the same deed is committed by a civil servant with management or control competence, the penalty is 6 months to 7 years imprisonment.  
The Government’s Emergency Ordinance No. 43/2002 regarding the National Anticorruption Prosecutor’s Office, as subsequently amended and completed, stipulates under Art. 14 that the persons with control duties are obliged to inform the National Anticorruption Prosecutor’s Office about any data or information which shows the perpetration of an infringement assigned to the competence of the respective institution.
Under the provisions of article 1, during the control activity, the persons with control duties are obliged to ensure and preserve the signs of the infringement, the material evidence and any evidence means which might be useful to the criminal prosecution bodies. The departments and bodies specialized in gathering and processing information are obliged to immediately place at the disposal of the National Anticorruption Prosecutor’s Office the possessed data and information about the perpetration of offences regarding corruption.  
The inobservance of the obligations stipulated under paragraphs 1-4 of GEO no. 43/2002 brings about legal liability, according to the law.
In accordance with Law No. 78/2000, the persons with control duties are obliged to inform the criminal prosecution body or, if needed, the body legally qualified for finding the perpetration of offences, about any data which offer clues about an illicit operation or act being performed which might bring about criminal liability.
In accordance with Law No. 360/2002, regarding the Police Officers’ Act, the policemen must inform their hierarchical chiefs and all the other qualified authorities about the corruption deeds committed by other policemen about which they have found out.
7.2 Are any measures in place to protect public officials who make such reports?
In accordance with art 21 para. (3) of Law 7/2004, the civil servants cannot be sanctioned or prejudiced in any way for rightfully reporting to the National Agency of Civil Servants or to the competent discipline committee the cases regarding:
a)            a civil servant breaching the provisions of this Code of Conduct;
b)            a civil servant being threatened or constrained to break the law or avoid its proper enforcement. 
Also, according to article 25 of Law no. 78/2000[14] , the fulfilling with good faith of the obligations provided by articles 23 and 24 does not represent breach of the professional and bank secrecy and do not engages criminal, civil or disciplinary liability, even the prosecution or judgement of the notified deeds conducted to interruption of prosecution or acquittal. 
Also, there is currently under parliamentary debates a draft law on the protection of personnel within public authorities, institutions and other budgetary units who notify law infringements. These provisions ensure the protection of good faith reporting public servants in what concerns any deed that constitutes infringement of law, professional deontology or good administration and transparency principles. This protection operates in front of the courts and disciplinary body of the institution in which the reporting person is employed.
8 Disciplinary procedures
8.1 What bodies are in place to carry out disciplinary investigations on misconduct/corruption of public officials? Please specify the jurisdiction (e.g. jurisdiction over the whole public administration or over one or a defined range of public administration organizations) of the investigative bodies, to which they are accountable, the factors ensuring their independence in investigation.
The disciplinary committees within the public authorities are institutions which have jurisdiction to investigate the disciplinary infringements in accordance with the procedure provided in G.D. no. 1210/2003 regarding the organizing and functioning of the disciplinary and parity committees within the public authorities and institutions. 
In accordance with art 3 par (1) from G.D. no. 1210/2003 the disciplinary committees shall be set up within each public authority and institution by the order of the head of the public institution or authority.
As an exception the discipline committee may be set up for more public authorities and institutions if within those public authorities or institutions there are less than 12 civil servants. The law does not provide for a body to which the disciplinary committees are accountable. 
The disciplinary committees are set up and rely on the following principles: presumption of innocence, guarantee of the right to defense, celerity and contradictoriness of the procedure, proportionality, legality of the punishment, legality and uniqueness of the penalty. The independence in investigation is ensured by the lack of subordination, as well as by the modality of setting up a disciplinary committee: the heads of the public institutions or authorities designates 2 members in the disciplinary committees and the representative trade union organization designates also 2 members. The chairperson of the discipline committee is be designated by the head of the public authority or institution.
In accordance with art 61 from Law 188/1999 the public authority or public institution, as well as the heads of the public authority or institution shall provide the disciplinary committee with the information needed for the conclusion of the labor agreements.
In accordance with Law No. 7/2004, the disciplinary committees have the competence to investigate the breach of the provisions of the civil servants’ conduct norm and propose the infliction of the disciplinary sanctions, according to the law, and when the perpetrated deeds represent the constitutive elements of some infringements, then the qualified criminal prosecution bodies shall be notified, according to the legal provisions. In accordance with Law No. 78/2000, in the case of the infringements stipulated under this normative act, the criminal prosecution shall be mandatory conducted by the Prosecutor’s Office.
In accordance with GEO No. 43/2002, the departments and bodies specialized in gathering and processing information are obliged to immediately place at the disposal of the National Anticorruption Prosecutor’s Office the possessed data and information about the perpetration of offences regarding corruption.
8.2 What is the relationship between disciplinary and criminal procedures?
According to Law No. 7/2004, the breach of the provisions of the civil servants’ Conduct Code generate the civil servants’ disciplinary liability, according to the legal provisions.
The disciplinary committees have the competence to investigate the breach of the provisions of the civil servants’ conduct norm and propose the infliction of the disciplinary sanctions, and when the perpetrated deeds represent the constitutive elements of some infringements, the qualified criminal prosecution bodies shall be notified.
In accordance with Law No. 188/1999, the disciplinary committees have the competence to investigate the deeds perceived as breaches of discipline and propose the sanction applicable to the civil servants from the respective public authorities or institutions.
The civil servants’ liability for the infringements committed during work or connected to the attributions of the public position they hold is engaged according to the criminal law, and when the requirements for the engagement of the criminal liability are not met, and the civil servant’s deed may be considered a disciplinary violation, then the competent disciplinary committee shall be notified. 
Part III: Legal persons and corruption
 
1. Legal persons
1.1 In general
1.1.1 Please provide a typology and definitions of the main legal persons in your country's legal system. Indicate if different legal capabilities result from the form of the legal person.
The Law no. 31/1990[15] on trading companies provides for the following categories of such legal entities:
The trading companies are set up under one of the following forms:
a) general partnership: a partnership in which each partner is liable for all partnership debts and obligations in full regardless of the amount of the individual partner’s capital contribution;
b) limited partnership : a partnership in which the business is managed by one or more general partners and is provided with capital by limited partners who do not participate in management but who share in profits and whose individual liability is limited to the amount of their respective capital contributions;
c) joint-stock company (public limited liability company): a company whose capital is represented by shares owned by stockholders each of whom is personally liable for the company’s debts up to the level of their contribution;
d) limited partnership by shares: a company in which the business is managed by one or more general stockholders and is provided with capital by limited stockholders who do not participate in management but who share in profits and whose individual liability is limited to the amount of their respective capital contributions;
e) private limited liability company: a partnership in which the partnership is liable as an entity for debts and obligations and the partners are not liable personally further than their contribution to the capital.
A company’s social obligations are guaranteed with the registered assets. The associates in a general partnership as well as the active partners in a limited partnership or in a limited partnership by shares shall have an unlimited and joint liability for the company’s obligations.
The company’s creditors shall first go against the company to fulfill its obligations and will go against the associates only if it does not meet payments within 15 days from the date of receiving note. The shareholders, the sleeping partners as well as the associates in a limited liability company may be kept liable only up to the value of their subscribed registered capital.
According to GO no. 26/2001, private non-patrimonial legal persons are:
·        Trade union is the organization without political character, which was set up in order to defend and promote professional, economic, social and cultural interests as well as the basic rights of the members.
·        Association is the organization established by 3 or more persons in order to achieve of general or private activities. For this goal, the members shall put together their knowledge or labor capacities, losing the right of return their contributions.
·        Foundation is the organization created by 1 or more persons, which may be set up by the act of will of a single person or mortis causa, in order to achieve permanently and irrevocably a general or private interest.
1.1.2 What are the requirements for the establishment of legal persons (e.g.: minimum shares, minimum number of applicants, condition of nationality, etc)?
The minimum capital required for a limited liability company (SRL) is ROL 2 million, about EUR 50. Capital contributions can either be in cash or in kind, but cannot be entirely in kind. Capital is divided into shares that cannot have a value of less than ROL 100,000. Shares can be freely transferred between existing shareholders. Transfer of the shares to third parties can only be done with the approval of shareholders representing at least 75% of the capital. The transfer of shares must be registered with the Trade Register and entered in the company's Shareholders Register.  
A joint-stock company (SA) must have a minimum capital of ROL 25 million in cash or in kind contributions (the law estimates an increase of the minimum share capital to EUR 25,000 by 31 December 2005). Part of the share capital must be contributed in cash. At least 30% of the subscribed capital must be paid up when founding the company. The balance must be paid within twelve months of the foundation of the company. Capital is divided into shares and the nominal value of a share must be at least ROL 1,000. Shares can either be nominative or bearer shares, as established in the company constitutive documents. However shares that are not fully paid up can only be nominative shares. In general, shares must have equal value and grant equal rights to the shareholders. The Company Law, however, lists the conditions under which preferential shares can be issued. Such shares give their holders the right to a preferential dividend, but they do not confer any voting rights. 
The Trading Companies Law states that upon finding that, due to losses incurred, the net asset value, determined as the difference between the total assets and the company's debts, amounts to less than half of the share capital, the directors shall convene the extraordinary general meeting to decide on whether to reinstate the share capital, reduce it to the remaining value or dissolve the company. 
Both SRL-s and SA-s must have one or more directors (administrators), each appointed by the shareholders. Directors are responsible for the management of the company. The administrators can be Romanian or foreign citizens, in any proportion. Administrators may appoint one or more executive managers to carry out the day-to-day business of the company. 
If a limited liability company has more than 15 shareholders, it has the obligation to appoint company censors. As expressly laid down in the Company law, joint stock companies are under an obligation to appoint either censors or auditors, depending on the specific situation of the company.
Contribution in cash is compulsory when setting up companies of any kind. Contributions are admissible in all forms of companies these contributions are fulfilled by transferring the relevant rights and by effective delivery, to the company, of the assets. Labor activities can not be considered as contributions to form or to increase the registered capital.
The forms of business most commonly used by foreign investors are the limited liability company (SRL) with one to 50 shareholders, and the joint stock company (SA) with a minimum of five shareholders and the branch (of a foreign parent company). Banks and insurance companies cannot be SRL-s.
The number of founders to a trade union can not be less than 15. The number of members of an association can not be lower than 3. The value of the assets of the foundation shall be more than 100 minimum wages as from the establishment date.
1.1.3 Describe the registration system in place for legal persons.
According to article 1 of Law no. 26/1990 republished and modified and Law no. 31/1990, republished and modified, all companies must be registered with the trade register and in the course of performing or upon the termination of their trade or, as the case may be, of the respective activity, to request the endorsement of mentions regarding the acts and deeds. Mentions concerning any alteration regarding the registered documents, deeds and mentions must be registered with the trade register (Law no. 26/1990, article 21).
The registration procedures for limited liability companies and joint stock companies are quite similar and consist of the following main steps:
  • The constitutive documents (by-laws) must be prepared, approved, and signed by the shareholders;
  • The subscribed capital must be paid upon registration of the company. In the case of a joint stock company (SA), each shareholder must pay at least 30% of its subscribed capital;
The company is registered with the Trade Register by issuance of a Registration Certificate. This provides a Registration Code valid for both the Trade Register and the tax authorities. The Registration Certificate also includes in an appendix all the necessary authorizations and approvals for carrying out commercial activities. The company legally exists and has the right to start and run its activities from the date of its registration with the Trade Register. 
The branch registration procedure is technically quite similar to the above. 
The registration with the trade register makes the acts and deeds of the companies opposable to the third parties.
Within 15 days from the authentification date of the constitutive act, the founders or the managers of the company or one of their properly empowered representatives will request incorporation of the company with the trade register of the area where it will have its headquarters.
The control over the legality of the documents which, according to the law, are going to be registered with the trade register is exercised by the judiciary through a mandatory judge.
At the beginning of each judicial year, the president of the court will appoint one or more judges to attend at the trade register office. The mandatory judge may request, on parties’ account, an expertise as well as presentation of other evidence.
In cases where the legal requirements are fulfilled, the mandatory judge authorize, by way of the interlocutory decision handed in within 5 days from the date the requirements have been fulfilled, the setting up of the company and will order its incorporation with the trade register, according to the conditions stipulated by the law regarding that register.
The incorporation decision shall contain the provisions of the constitutive act. The trading company becomes a legal person as from the date of its incorporation with the trade register.
Incorporation shall be done within 24 hours from the date the decision of the mandatory judge has become final.
At the time of the incorporation of the conclusions of the mandatory judge shall be forwarded, ex officio, to the Official Journal of Romania, for publication, at the parties’ expense, as well as the office of the financial administration of the area where the company has its headquarters with the purpose to be entered into the fiscal registers, mentioning the registration number with the trade register.
The representatives of the company are obliged to submit their own signatures with the trade register office within 15 days as from the company’s incorporation date, if they have appointed by the constitutive act, and within 15 days since their election by the ones elected after the company started its operation.
Branches must be registered using the same procedures for SRLs and SAs. The foundation of a branch requires the following documentation:
 Record of the existence of the parent company (i.e. company memorandum and articles of association, certificate of foundation, letter of reference from bank);
 Decision of the Board of Directors to establish a branch in Romania, listing the activities of the branch and nominating a General Manager.
For the trade unions, associations and foundations, it is compulsory an authorization given by the judge of the area where this kind of legal person has the headquarters with the purpose to mention it in the Book of Associations and Foundations or in the Special Book of the Trade Unions.
1.1.4 What kind of other measures are in place to ensure transparency (e.g. : restrictions on legal persons to hold interests in another legal person, restrictions on the number of accounts a company can hold in your country, etc)?
In order to ensure transparency, Romanian legal system has provided for some measures like:
·        the obligation of all public servants to submit the wealth statements;
·        the obligation of all public servants to give the statements of conflict of interests;
Within the companies, the following persons can not be appointed as experts:
·        relatives up to the fourth rank included spouses of those who came with contributions, or of the founders;
·        the persons who receive, in any way, for the position they fulfill, other than of an expert, an wage or a remuneration from the founders or from those who came up with contributions in kind.
The following persons may not be auditors, and if they were elected, they are denied their mandate:
·        Relatives up to the fourth rank included, or managers’ spouses.
·        Persons receiving any form of salary or remuneration from the managers or from the company, for another position than that of an audition;
·        Persons who are denied the position of a manager
1.1.5 Is there a possibility in your country to disqualify persons found guilty of offences from acting in a leading position in legal persons?
According to article 8 of Go no. 75/2001 on organizing and functioning of fiscal record, the delegated judge, courts and competent bodies do not authorize the developing of activities when in the fiscal record there are registered criminal offences.
Pursunat to article 6, para 2 of Law no. 31/1990,the persons who, according to the law, are incapacitated or have been sentenced for fraudulent management, breach of trust, forgery, use of forgeries, cheating, embezzlement, perjury, bribery or other criminal offences prescribed by this present law, cannot assume the position of founders. 
1.2. Liability of legal persons
1.2.1 Has your country undertaken measures to establish the civil, criminal or administrative liability of legal persons for criminal offences, in particular corruption related offences? Please specify and provide official translations (French or English) of the relevant legal documents.
Civil liability of legal entities
The article 1000 Civil Code provides that one is liable for the prejudice caused by the deed committed by another person for whom that one is legally bound and, also, the employer shall be liable for the damages caused by his employees to another person. The term employer can be interpreted as a legal person.
Criminal liability of legal entities
Introduced first in Romanian legislation by Law no. 199/2004 on criminal liability of legal person for counterfeiting coins or other values and consecrated by Law no. 301/2004 on the new Criminal Code Title II, Chapter IV Article 45 (the new criminal Code shall enter into force on July 2005.
The categories of offences for which the legal entities are liable:
Ø      The new Criminal Code engages the criminal liability of legal persons for several crimes and delicts as: genetic manipulation – art. 193 - 196, crimes and delicts against the freedom of persons – art. 201-205 and art.211-213 , corruption deeds related to adoption – article 231, active bribery – art. 309, trafficking in influence – art. 312, crimes and delicts against good usage – art. 235-238 and art.240, delicts against labor protection – art. 243 and 244, hindrance of freedom of the cults – 246, money laundering – art. 270 etc.
Ø      According to Law no. 199/2004, the legal persons are criminally liable for the offences of counterfeiting money or other values provided by articles 282 and 284 of Criminal Code, also for the offence of holding instruments for the commission of such offences pursuant to article 285 of Criminal Code.
1.2.2 Please indicate the conditions under which a legal person can be held liable in your country for corruption offences, and specify whether these measures are applicable to the offences of (i) active bribery (ii) trading in influence and (iii) money laundering committed for the benefit or on behalf of the legal person.
According to article 45 of the new Criminal Code the legal entities, with the exception of the State and of public authorities, shall be criminally liable in the cases provided by the law for offences committed on behalf or in the interest of legal persons by their bodies or representatives. Criminal liability of a legal person shall not exclude criminal liability of a natural person who participated in the commission of the same deed. Also, legal persons shall be criminally liable both for deeds committed with intent, and for those committed out of negligence, in cases expressly provided in the law. Legal person means any organisation, trade company, association or foundation having civil capacity and being registered and authorised according to the law. For legal persons, both perpetrated offence and attempt are incriminated, in cases expressly provided in the law.
In what concerns the offences of active bribery (article 309 of new Criminal Code) and trading in influence (article 312 of new Criminal Code), pursuant to article 313 of new Criminal Code, legal entities shall be sanctioned for the offences too. Also, pursuant to article 270, new Criminal Code, the legal entities shall be sanctioned for the offence provided in article 268 on money laundering.[16]
1.2.3 Please, indicate whether the liability regime is also applicable when lack of supervision or control by a natural person, who has a leading position within the legal person, has facilitated the commission of the offences mentioned under the previous question.
The civil liability is applicable to legal entities even if lack of supervision or control by a natural person has facilitated the commission of the offence.
The criminal liability of the legal person, according to art 45 of the new Criminal Code, is engaged when a corruption offence was committed on behalf or in the interest of the legal entity, by its bodies or representatives. Bodies or representatives of legal persons means both natural persons who exercise prerogatives of leadership and control (e.g. Board of Administration, director, chief-accountant for trade companies or president, general assembly, Board of Direction, censors, for associations and foundations) and other natural persons who entail the liability of the legal persons while they are its representatives.In the same time, the liability of legal entity does not exclude the criminal liability of the natural person who facilitated the commission of the offence.
1.2.4 Please indicate whether the benefit could only be potential or should it be effectively realized.
The civil liability is not governed by the existing benefit.
The corruption offences are offences of risk/danger, meaning that by their commission it is created a situation of danger regarding the good operation of the work activities in a state institution or within a legal entity, no matter the result of a certain effect. For example, the offence of active bribery is consumed when the author promises, offers or gives to the public servant money or other advantages (article 309 of new Criminal Code).
1.2.5 Is it possible to assign liability to the legal person when no natural person has been convicted or identified?
The civil liability can be effective even if no natural person has been convicted for an offence, but it becomes inadmissible if the natural person has not been identified.
The criminal liability is personal so that no matter if the natural person was or not convicted, the legal person will be liable for the commission of the deeds provided by the criminal law.
1.2.6 Is the liability of a legal person determined within the framework of the same proceedings as those against the physical perpetrator or as a consequence of the proceedings against the physical perpetrator?
The liability of a legal person may be engaged within a separate proceeding (before or after) or within the proceedings against the physical perpetrator.
1.2.7 Does the liability of legal persons exclude criminal proceedings against natural persons who are perpetrators, instigators of, or accessories to (i) active bribery, (ii) trading in influence and (iii) money laundering?
As it is abovementioned, the liability of legal person does not exclude the liability of the natural person who participated to the commission of the offence as perpetrators, instigators of, or accessories to active bribery, trading in influence and money laundering (article 45 of new Criminal Code, corroborated with articles 270 and 313 of the new Criminal Code).
1.2.8 For the last three years, please provide available statistics and details on the proceedings instituted against legal persons for corruption and trading in influence. If possible, please provide details on cases involving natural persons holding managerial functions within legal persons.
The provisions regarding the criminal liability of the legal person shall enter into force on July 2005, so, for the mentioned period, there are no criminal proceedings against the legal persons.
If you do not collect general figures for the entire country, please provide samples
1.3. Sanctions and measures for legal persons
1.3.1 What sanctions or measures are foreseen in the case a legal person is held liable for (a) active bribery, (b) trading in influence and (c) money laundering?
Title III, Chapter II of the new Criminal Code sets forth the categories and general limits of penalties applicable to legal persons for crimes or delicts. There are: main penalties – fine from 10.000.000 to 10.000.000.000 ROL, and complementary penalties:
a)                               dissolution of the legal person may be handed down when the legal person was created in order to commit offences or when its object of activity was altered in view of committing offences; dissolution of a legal person results in the opening of liquidation proceedings according to the law.;
b)                               suspension of the activity or of one of the activities of a legal person, which resides in the prohibition of the entire activity or of the particular activity of the legal person through the exercise of which an offence was committed. This penalty may be applied for a period from 1 to 3 years.
c)                               prohibition to partake in proceedings of public procurement, both directly and indirectly, for a period from 1 to 5 years;
d)                               prohibition to access certain financial resources, prohibition to obtain funds through placement of securities or to obtain funds from credit institutions, or financial institutions for a period from1 to 5 years;
e)                               posting or disseminating the decision of conviction through the Official Journal or through the media, at the expense of the legal person convicted.
The complementary penalties under b) - e) may be applied jointly, fully or partly. It is relevant that, for the attempt, legal persons are sanctioned with the main penalty of fine, which is reduced by half, taking account of the special minimum and maximum provided in the law for the offence when it is perpetrated. Complementary penalties may be applied alongside the main penalty, with the exception of dissolution of the legal person.
Legal and judicial mitigating and aggravating circumstances are applicable to legal persons, as the case may be. The security measure of special confiscation is applicable also to legal persons. It consists of confiscating the following categories of goods: goods that are the proceeds of the offence; goods that have acquired a different legal treatment through commission of the offence; goods that were used or meant to be used in the commission of the offence, if they belong to the perpetrator or if, while belonging to another person, the latter was aware of the manner of using them; goods that were given in order to determine the commission of an offence or to reward the perpetrator; goods acquired through commission of the offence, if they are not used for compensating the injured person; goods owned in violation of legal provisions. Should the goods that are subject to confiscation not be found, their equivalent in money or the goods acquired in their stead shall be confiscated.
1.3.2 How does your legal system ensure the effective application of sanctions, in particular how is it avoided that institutional changes (e.g.: setting up of new company, take over, etc) circumvent the application of sanctions imposed?
In what regards the ruling of the situations in which the institutional changes (e.g. the creation of a company, taking over) would determine that the sanctions imposed not to be applied to the legal person, these were not provided for yet in the internal legislation or settled by case law.
1.3.3 Is there in your country any records of companies found liable for acts of corruption?
Considering that until the entrance into force of the provisions of the new criminal code the legal person is not liable for the commission of the deeds provided by the criminal law, it is not kept a register regarding the legal persons convicted for the commission of corruption deeds.
2 Tax deductibility and fiscal authorities
2.1 Has your country prohibited the deductibility for "facilitation" payments [4] , bribes or other expenses linked to corruption offences?
Law no. 571/2003 on Fiscal Code provides in article 21, para 4 the prohibition of deductibility for certain payments, but does not expressly mention bribes or other expenses linked to corruption offences. But, according to letter m), there are not deductible the expenses for services of management, consulting, assistance or other supplies of services for which the taxpayer can not justify the necessity of such supply for the purpose of carrying out the own activity and for which contracts are not concluded.
Bribes and other expenses linked to corruption offences are obviously covered by this provision. Generally, facilitation payments will also be covered.
2.2 Are tax authorities involved in the detection and reporting of offences criminalized under penal law, such as corruption and money laundering? If yes, what are the cooperation mechanisms in place and how do they report suspicions to law enforcement bodies?
The tax authorities receive information, data and various records from any tax payer, according to the law, in the course of their activity. Also, they can conduct investigations on premises, if necessary, according to the law. The information regarding the taxes, contributions and other amounts of money due to the general budget, can only be transmitted to the persons and institutions expressly provided by the law (including the judicial authorities), according to the provisions regarding the professional secrecy. Regarding the cooperation mechanisms, see also the answer from 2.3.
According to article 105[17] of the Fiscal Procedure Code the fiscal bodies shall notify the prosecution bodies on all findings that arise following the fiscal inspection and constitute an offence, pursuant to the criminal law.
The law no. 656/2002 on the prevention and sanctioning of money laundering imposes in article 3 the obligation for any employee of a legal entity or one of the legal persons mentioned at article 8 (financial institutions, including state treasury) who have any suspicions that a transaction, which is on the way to be performed has the purpose of money laundering to inform the person appointed according to article 14 para 1, who shall immediately notify the National Office for the Prevention and Control of Money Laundering , which shall confirm the receiving of notification. But, in article 3 para 8, the law is making an exception for the following categories of operations carried on by state treasury: salaries, payments made by public institutions, tax and other contributions paid by natural and legal persons, cash amounts deposited by public institutions and external transfers for amount of money having maximum limit the equivalent in ROL of 10,000 euro.
2.3 What are the mechanisms in place concerning the access of law enforcement bodies to tax records?
According to article 8 of law no. 87/1994 republished on tax evasion, the financial – fiscal bodies within the Ministry of Public Finances and territorial units, Financial Guard and other persons empowered by law are entitled to verify the tax payers on the way they obey the legal provisions on organization and development of the economic activities producer of taxable incomes or goods. The tax payers have the obligation to allow the developing of control and to put at disposal of control bodies all accounting documents, registers and other material elements or values aiming at identifying the existing objects and the tax sources. Article 9 incriminates and establishes as punishment for it imprisonment from 6 months to 3 years the refuse to submit to control bodies the justifying papers and accounting documents, the goods that are the object of tax and public contribution aiming at establishing the budgetary obligations.
On the other hand, during the prosecution, the prosecutor or the police may order, on the basis of article 99 of the Criminal Procedure Code, the forced taking to custody of written that may serve as evidence, including fiscal documents. If the required written is not submitted without constraint, the prosecutor may demand to judge an authorization for search (articles 100 – 111 of criminal Procedure Code).
3 Account offences
3.1 Is there any obligation to keep accounting records or books for a certain period of time? Please specify.
According to the provisions of article 24 of Law no. 82/1991 on accounting, there is the obligation for keeping the accounting documents, on paper and electronic support for a period of 10 years excepting the documents concerning the wages, which are kept for a period of 50 years. Article 28 of the same normative act provides that the annual financial records are kept for 50 years. Also, para 3 of this article specify that the accounting documents and financial records shall be submitted to the state archives when the legal persons cease their activity.
3.2 Are certain legal persons (associations, companies, foundations etc.) exempted from the obligation to keep accounting records or books? Please specify.
All the legal persons[18] have the obligation to keep the accounting registers and documents, on paper and electronic format.
3.3 Has your country undertaken measures to incriminate the use of invoices or any other accounting documents or records containing false or incomplete information or double invoices? Please specify.
The information which must be included in the bill, otherwise the VAT is non deductible, are the following:
a) The series and the number of the bill;
b) The date of the emission of the bill;
c) The name, the address and the fiscal registration code of the person who emits the bill;
d) The name, the address and the fiscal registration code of the person who emits the bill;
e) The name and the quantity of the delivered goods, the name of the delivered services;
f) The value of the goods or services, excluding VAT;
g) The quantum of the VAT or the mention – exempted with the right to deductibility, exempted without the right to deductibility, non taxable, or not included in the taxable basis, as the case may be:
h) the value of the VAT for the taxable operations.
Regarding the false information, the contributors are compelled to use for the activity developed, primary documents and of accounting registration established by the law, acquired only from the established unities by the legal norms in force and to complete entirely the forms, according to the registered operations. According to article 11 of Law 87/1994 on tax evasion, republished in 2003, the following deeds constitute offences and are sanctioned with imprisonment from 2 to 8 years and the interdiction of certain rights: the omission of registering within accounting documents of all undertaken operations or all incomes; the registering of false operations and expenditures, aiming at avoiding the tax payment or the diminishing of the amount of legal tax; organizing double registers, alteration and destroying accounting documents, the deletion of the memory of the fiscal data stoking machines, issuing, distributing, filling in or accepting false fiscal documents. According to article 12 of the law on tax evasion, it constitute also offence and is sanctioned with imprisonment from 3 to 10 years and prohibition of certain rights the fictive declaration on the premise of trading companies aiming at avoiding fiscal obligations.
3.4 Is the destruction or hiding of accounting records or books subject to sanctions? Please specify.
According to article 25 of Law no. 82/1991 on accounting, in case of losing, stealing or destroying accounting documents, measure of reconstituting them will be taken in 30 days from their discovery.
In case that the contributor hides or refuses the presentation of the accounting documents, the conditions for the commission of an offence are met and is sanctioned, according to the Law 87/1994 republished on tax evasion. According to article 9 of this law, it is an offence and is sanctioned with imprisonment from 6 months to 3 years or with fine, the refusal to present to the control bodies, competent according to the law, the evidence documents and the accounting documents as well as the goods submitted to taxes and other contributions to the public funds, in order to establish the budget obligations.
Also, according to article 276 of Law no. 31/1990 on trading companies, the following deeds constitute offences and are punished with imprisonment from 3 to 12 years:
a) forgery, snatching away or destroying company’s records, concealing part of the company’s assets, presenting fictitious liabilities, if each of these actions are intentionally performed to diminish the value of the assets;
b) selling, in case of a company going bankrupt, and to the prejudice of the creditors, of an important part of the assets.
4 Role of accountants, auditors and legal professions
4.1 Are accountants, auditors and/or other advising professions obliged to report suspicions of offences to law enforcement authorities? Please provide details and relevant legal texts in English or French.
The Romanian legislation has general provisions which would oblige the accountants, auditors or other advising professions if they are public servants to report suspicious offences to law enforcement authorities.
According to article 14 of GEO no. 43/2003 regarding the National Anticorruption Prosecutor’s Office, the persons with control attributions shall be obliged to inform the National Anticorruption Prosecutor’s Office with regard to any data or information from which it results that one of the corruption offences that fall within the competence of the National Anti-Corruption Public Prosecutor’s Office was committed. Also, the article 20 of the same act provides that after the initiation of the criminal prosecution the banking secret and the professional one, except for the lawyer’s professional secret, shall not be opposable for the prosecutors of the National Anticorruption Prosecutor’s Office.
In case of money laundering, according to article 8 par e) of Law no 656/2002 on the prevention and sanctioning of the money laundering, “the natural and legal persons –providing legal, notarial, accounting, financial and banking advice, notwithstanding their professional secrecy legal provisions”, are obliged to report any suspicion of money laundering, if the operations use sums which represent the equivalent in ROL of 10 000 Euros at least, no matter if the transaction is made through one or more operations connected (art 3 para. 6 and 7).
Also, according to article 262 of the Criminal Code, there is a general obligation for any person to denounce immediately the commission of the offence of embezzlement, and other serious crimes. Moreover, the help given to an offender before or during the commission of an offence, to delay or to put obstacle to the criminal proceedings or to ensure to the offender the use of the proceeds of the offence is punished (article 264 Criminal Code).
4.2 Please, indicate whether in your country, steps have been taken (for instance by your Government or professional organizations) to involve accountants, auditors and other advising professions in any policies aimed at detecting/reporting accounting offences and the dissimulation of crimes, in particular corruption and money laundering.
See previous answer (4.1).
In order to involve accountants, auditors and the other advising professions in policies aimed at detecting accounting offences and dissimulation of crimes, in particular corruption and money laundering, many professional non governmental organizations have organized conferences and colloquium where this topic was debated. 

 


[1] The President of Romania, the deputies, the senators, the members of the Government, the state secretaries and undersecretaries, as well as those assimilated to them, the magistrates, the country and local councilors, the mayors, the civil servants that carry on their activity within the central or local public authorities, the members of the managing boards, and the persons who hold management positions, from directors, included, and up, within the autonomous state companies of national or local interest, of trading companies with state majority capital, of the State Property Fund, of the National Bank of Romania, of the banks with state capital, total or of majority, candidates to Romanian Presidency, deputies, senators, county councillors, local councillors or mayors
[2] Special confiscation: Art.136– (1) The following are subject to special confiscation:
a) goods produced by or that acquired a different judicial statute by the commission of an offence;
b) goods that have served or that were destined to serve in the commission of an offence, if they belong to the perpetrator or if belonging to another person who was aware of their usage. This measure cannot be ordained for offences committed through the press;
c) goods given away to determine the commission of an offence or to remunerate the perpetrator;
d) goods acquired through commission of the offence, if they are not returned to the person injured and to the extent that they do not serve to compensate the latter’s losses;
e) goods possessed in violation of legal provisions.
(2) If the goods subject to confiscation cannot be found, their equivalent in money or the goods acquired instead shall be confiscated.
(3) The court can decide not to ordain confiscation of the goods, if they are part of the perpetrator’s subsistence, daily necessities or serve in the exercise of profession. 
[3] Law 571/2003 on the Fiscal Code, article 21 para 4, letter b): The following expenses are not deductible: (…) b) the fines, the confiscations, the fines and penalties for delays due to the Romanian authorities, according to the legal provisions (…); article 49, para 7, letter f): the following expenses are not deductible:(…) f) the fines, the confiscations, the fines and penalties for delays due to the Romanian authorities, other than the ones paid according to the provisions of the commercial contracts (…).
[4] See annex I
[5] The new Criminal Code provides for new corruption offences: article 311 - unjust remuneration; article 231 – corruption deeds related to adoption;
[6] The provisions of the Criminal Code (art. 4-6) stipulate the following:
Art. 4. - Criminal law applies to crimes committed outside Romania, if the perpetrator is a Romanian citizen or if, possessing no citizenship, the perpetrator has residence in Romania.
Art. 5. - Criminal law applies to crimes committed outside Romania, which act against the Romanian state security or against a Romanian citizen's life, or which seriously damaged physical integrity or health of a Romanian citizen and which are committed by a foreign citizen or by a person without citizenship and who is not residing in Romania.
Art. 6. - Criminal law also applies to other crimes than mentioned in art. 5, paragraph 1, namely to crimes committed outside Romania by a foreign citizen or by a person without citizenship and who is not residing in Romania, if:
a) the respective action is considered a crime as well by the criminal law of the country where the action was committed;
b) the perpetrator is in the country.
[7] This article will be amended through the modifications envisaged through the draft law prepared by the working group within the Phare Twinning Project RO 02-IB/JH-08, as following: the deletion of letter e) of para 1, art 8 of Law no 656/2002 and in the addition of the following letters d1) and e1) of the same paragraph 1, as well as para 2, which include tax expert, describe precisely when money laundering obligations will apply and restrict the obligation to report suspicious transaction when the independent legal professional is granting assistance to his client in the judicial phase.
[8] See Annex XIV
[9] See annex no VII.
[10] See Annex XIII
[11] See annex no VIII.
[12] See annex no IX.
[13] See annex no X.
[14] See Annex IV
[15] See Annex no XI.
[16] See Annex no XII
[17] Article 105 of the Fiscal Procedure Code: (1) The tax authorities will notify the criminal investigation bodies regarding the discoveries made with the occasion of the tax inspection and which could constitute a criminal offence, in the conditions of the criminal law. (2) In the situations provided in para (1), the inspecting agents have the obligation to elaborate an official report, signed by him and by the tax payer under inspection, with or without comments from the tax payer. In the case that the inspected person refuses to sign, the tax authority will make a comment on the report. In all cases, the report will be notified to the tax payer.
[18] Law no 82/1991, republished, article 1: (1) The commercial enterprises, the national companies, the state owned enterprises, the national institutes of development and research, the cooperatist enterprises and other legal person with lucrative target have the obligation and conduct its own accounting, respectively financial accounting, according to this law, and the management accounting adapted to the specific activity. (2) The provisions of para (1) is applied also to the public institutions, associations and other legal persons with and without lucrative aim, as well as the natural persons authorized to develop independent activities.
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