THE ROMANIAN ANTICORRUPTION BILL
    LAVINIA STAN
    
    Studies in Post-Communism Occasional Paper no. 6 (2004)
    
    Centre for Post-Communist Studies St. Francis Xavier University www.stfx.ca/pinstitutes/cpcs
    
    Successive Romanian post-communist governments have made halfhearted attempts to adopt the legislative framework needed to fight corruption, a serious affliction impacting that country’s chances for consolidating democracy and gaining acceptance into the European Union. More than a decade after the collapse of communism, the legal anticorruption framework remains deficient both because key pieces of legislation are missing and because already adopted laws allow for numerous loopholes and lenient sentences or blatantly contradict each other. Before 2000, no government approached corruption holistically or wished to clear out the ambiguities plaguing the disparate laws, governmental ordinances and ministerial orders dealing with various facets of the phenomenon, although all governments declared anticorruption an utmost priority. With respect to unpopular measures such as state-owned company privatization and restructuring Romanian cabinets chose to bypass reluctant legislatures and draft ordinances in order to move the process forward, but no such political will was evident with regard to the fight against corruption. Since the Social Democratic Party won the late 2000 general elections and the Adrian Nastase cabinet was sworn in, Romania has seen a flurry of anticorruption activity, partly in response to repeated criticism from the European Union and NATO, and partly as an attempt to win over some of the electors supportive of the main opposition party, the nationalist Greater Romania Party, which made anticorruption the cornerstone of its electoral campaign. The other formations currently represented in the Romanian Parliament are the Liberals, the Democrats, the Democratic Union of Magyars in Romania, and the Humanist Party (up to September 2003 a junior partner to the ruling Social Democrats). As part of the anticorruption campaign, the Justice Ministry drafted a “National Plan for Preventing Corruption” and a “National Plan for Fighting against Corruption (2001-2004),” while the government adopted a comprehensive strategy for “Combating Corruption in 1
    
    Romania.” These programs contain an impressive list of objectives alongside measures to accelerate the anticorruption campaign, whose fulfillment will provide key benchmarks for judging the commitment of the government to stem out corruption. Their importance is boosted by the fact that, for the first time, Romanian authorities seemingly admitted that the political establishment may be more the source of than the solution to corruption, a phenomenon endemic to a wide range of Romanian public institutions. A number of reports have already established that corruption thrives in that country and tends to be connected (directly or indirectly) with the political class. Romania has consistently ranked among the most corrupt East European post-communist countries in terms of the Corruption Perception Index (see Table 1). Almost daily, the local press reports cases of politicians of all ideological persuasions, age and educational background engaging in nepotism, pull, cronyism, bribe taking and giving, misappropriation of public funds and embezzlement, with journalists deploring the many terms that the Romanian language reserves for describing corruption. Romanian and Western observers alike have detailed not only the extent of corruption in that country, but also the role of political corruption in stalling the dual political and economic transformation which postcommunist countries have embarked on.1
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    Among studies on corruption in Romania, see Diagnostic Surveys of Corruption in Romania (World Bank, 2001), Corruption and AntiCorruption Policy in Romania (Open Society Institute, 2002), A. Mungiu-Pippidi, “Breaking Free at Last: Tales of Corruption from the Post-Communist Balkans,” East European Constitutional Review vol. 6, no. 4 (Fall 1997), and V. Stoica, “Romania’s Battle Against Corruption,” Public Management Forum vol. 3, no. 2 (1997). The most important studies analyzing high political corruption and its impact on East European democratization and economic transition are Anti-corruption in Transition: A Contribution to the Policy Debate (World Bank, 2000), S. Ross-Ackerman, Corruption and Government: Causes, Consequences and Reform (Cambridge: Cambridge University Press, 1999), and L.
    
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    Table 1: Corruption Perception Index Rankings, East Europe
    Country Albania Bulgaria Czech Republic Hungary Poland Romania Slovakia Slovenia Croatia 2002 81 45 52 33 45 77 52 27 51 2001 37 37 31 44 69 51 34 37 2000 52 42 32 43 68 52 28 51 1999 84 63 39 31 44 63 53 25 74 1998 66 37 33 39 61 47 1997 27 28 29 37
    
    As it will become apparent, while significant progress has been accomplished, there is yet much to be done in order to bring political corruption to an acceptable level, and root out the practice of using public funds for private interests. Conflict of Interest and Office Incompatibility Conflict of interest and office incompatibility were legislated by the 1991 constitution and the law on public local administration (Law 215/2001), but provisions were unclear and prone to interpretation, and the procedure for applying sanctions remained unspecified. The Law 215/2001 described and punished cases placing local and county elected officials in incompatibility. According to Articles 30 and 112, councilor positions were incompatible with those of prefect, deputy prefect, mayor, government and Parliament member, employee of decentralized ministerial territorial offices, and administration board member or manager of public utilities and companies set up by the council. Mayors were further banned from holding management positions in state-owned companies and public utilities, and other public offices and activities, except those of university professor or foundation member (Article 62). While providing the first markers for office incompatibility, the law had several shortcomings. ‘Incompatible’ councilors and mayors could lose their mandate, but the dismissal procedure was unclear. Elected officials were not banned from managing private companies which were not under the council’s direct authority, but had won lucrative contracts from it. As the law was adopted during their mandate, local officials who assumed office in 2000 were considered exempt from observing the law, which was to be implemented only after the 2004 elections. Equally unclear were the constitutional provisions outlining the incompatibility of deputy and senator positions. According to Article 68 of the constitution, an individual 4
    
    Blank cells indicate unavailable rankings.
    
    This article discusses recent efforts of the Romanian authorities to tackle political corruption by presenting the legislative framework governing conflict of interest, office incompatibility and asset disclosure affecting elected and non-elected public officials, detailing the political bargaining preceding the setting up of the National Anticorruption Prosecutor’s Office and during the first year of its activity, analyzing the new anticorruption bill for which the government assumed responsibility, examining the results of initial attempts to implement the bill and force politicians to distance themselves from direct private interests which might affect their decisions, and pointing out the most important drawbacks of the anticorruption strategy. None of these themes were analyzed in the English-language literature, though they were the topic of many Romanian press reports. The anticorruption measures presented here have pitted the government against both the opposition and some Social Democrat members unwilling to see their privilege of combining public office and private business compromised.
    Holmes, The End of Communist Power: Anti-Corruption Campaigns and Legitimation Crisis (Cambridge: Polity Press, 1993).
    
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    cannot be deputy and senator at the same time, and Parliament members cannot hold any “public function of responsibility” except that of cabinet member. But the article failed to provide details on those public functions, as did other pieces of legislation subsequently adopted. All these legislative shortcomings meant that by late 2001 no local and central public official had admitted to incompatibility or had chosen between the public office and the private business. In early 2002, the Romanian Parliament decided on a set of anticorruption laws to be adopted before the Prague summit, scheduled later that year, when the country hoped to be accepted as a NATO member. The decision responded to demands from international actors that Bucharest take conflict of interest seriously and separate public from private activities. But the processes of legislating conflict of interest at the local and central level differed sharply. Instead of acting as a model for the entire country, Parliament and government members preferred to start the process of cleansing the political class at the local level. Beside the obvious desire to buy time for themselves, the reasons included the belief that conflict of interest in local public administration was more dangerous to the country’s political stability and the new regime’s credibility given the sheer number of local public officials and their direct interaction with the citizens. Equally important was the fact that the government could regulate conflict of interest for local public officials through the adoption of ordinances, an option unfeasible in the case of Parliament members, since it ran the risk of being rejected by the legislators. While Parliament promised comprehensive reforms with respect to conflict of interest and asset disclosure by the dignitaries, in the end it delivered nothing. As a result, the government had to act as the main legislator in this area by proposing legislation, drafting ordinances and assuming responsibility for the anticorruption bill. In January 2002, the cabinet adopted Governmental Ordinance 5 (later approved by Parliament as Law 378/ 5
    
    2002), which banned local elected and non-elected public officials from simultaneously holding mayor, deputy mayor, local and county councilor positions, on the one hand, and positions of shareholder, manager and board member of public utilities and companies subordinated to the local administrative body which they represented, on the other hand. Officials had to choose between positions by 17 February, otherwise they risked losing their public office by order of the prefect. The ordinance also banned local officials from using their position of influence for helping companies to obtain contracts from local governmental bodies and their subordinated companies. Already drafted contracts were to be annulled. The ban applied not only to the local officials in the mayor’s offices and local and county councils, but also to their first- and second-degree relatives. Yet conflict of interest was established by written declarations given by officials themselves, and not as a result of verifications conducted by an independent agency. The temptation to offer false information was great, since sanctions were minimal. The deadline prompted the press to try to identify the elected and non-elected local officials in incompatibility either because of their personal, or their close relatives’, involvement in private business. A flurry of press reports unmasked the illegal dealings of many local officials, their spouses and children, but only in rare cases officials chose to put an end to their incompatibility status. Two days after the deadline, the Ministry of Local Public Administration, overseeing the activity of local governmental and administrative bodies, announced that only 123 of the total 44,390 local and county councilors declared themselves in position of incompatibility. Of these, 24 gave up their councilor mandate, 88 renounced their involvement in private business, and eleven annulled the contracts drafted with local governmental bodies. No ‘incompatible’ mayor or deputy mayor was found. The statistics was compiled by prefectures of all 40 Romanian counties on the basis of the declarations given by local 6
    
    officials. While the ministry insisted that the report was complete and reflected reality, journalists immediately contested its accuracy, pointing out that far more than just 0.3 percent of local officials had used their political office to augment their personal income. Indeed, only in the Constanta county the prefecture announced that of a total of 1,082 as many as 246 local officials were in incompatibility, being shareholders in some 391 companies.2 A scandal broke up in the northeastern city of Iasi when an independent investigation revealed that many public officials and civil servants were major shareholders or administrative board members of profitable private companies. When asked why they did not include this information in their declarations, officials claimed that forms asked only about involvement in companies doing business with the local government, not general involvement in the private sector.3 While some officials gave false declarations, others denied their incompatibility and, to buy time, asked the ministry to evaluate their situation, rather than voluntarily giving up lucrative positions in the private sector. Still others pointed out that the ordinance failed to distinguish clearly between involvement in private companies and involvement in companies and utilities set up by local governmental bodies, and that in fact conflict of interest referred only to the former, not to the latter. The reason was that councils had to be represented on these company administrative boards, and none could do that better than the councilors. Since such appointments were voted on by the councils, they claimed, the dismissal had to be decided by the councils, which did not follow suit.
    Cuget Liber (16 February 2002). Governmental documents are to be found at www.guv.ro. 3 The Iasi mayor threatened to sue the authors of false declarations, but before he could make good on his promise Liberal councilors distributed 25,000 postcards with the names of 22 ‘incompatible’ local councilors. Yet, councilors refused to make a choice. See Evenimentul Zilei (22 March 2002) and Adevarul (8 April 2002).
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    Opposition to the ordinance mounted, coming from every political party and even from within the ruling Social Democrat ranks. Botosani county council vice-president and Social Democrat leader Constantin Contac threatened to sue the government “all the way up to the European Court of Human Rights” if his ‘right’ to be simultaneously involved in politics and business was infringed. The press alleged that Contac’s private firm obtained lucrative contracts from the council in tenders organized by the local transportation state agency led by none other than Contac’s son.4 The officials’ first and second degree relatives had yet to be verified. Most outspoken was the opposition Democratic Party, which announced plans to expel all its local representatives who did not solve their incompatibility status by the deadline, and launched a wide campaign to unmask and make public the names of all ‘incompatible’ Social Democrats. Shortly after the deadline, the Democrats condemned the Social Democrat leadership’s reluctance to follow the spirit of the law and to withdraw support from its disobedient representatives disregarding the ordinance. To show the inaccuracy of the data provided by the Ministry of Local Public Administration, the Democratic Party compiled its own statistics of ‘incompatible’ Social Democrats, revealing that 589 Social Democrat local representatives (of which eight county leaders, nine deputy mayors, three prefects, one deputy prefect, 130 county councilors and 387 local councilors) were also shareholders and administrative board members of companies and public utilities subordinated to local governmental bodies. The authors asked Premier Nastase to follow the example of the Democrat Party and penalize local officials whose incompatibility remained unsolved “in order to end the temptation to direct public funds toward their own pocket or that of their political colleagues.” The Democrats further declared that within their ranks there was only one case of
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    Monitorul (18 February 2002).
    
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    insubordination, and that the representative who refused to choose between his mandate and private business had been promptly expelled from the party.5 Although the government and the Social Democrat Party leadership lacked political will to apply the ordinance, and only a fraction of local public officials were forced to choose between their public and private positions, further concessions were granted. The first concession came only days after the deadline, when the Senatorial Judicial Committee approved, and the Senate accepted, amendments to the ordinance that allowed elected officials to remain shareholders and administrative board members but not company leaders. Companies where local elected and nonelected officials, public utility employees and their first and second degree relatives were managers and major shareholders continued to be banned from having contractual relations with local governmental bodies and public utilities subordinated to them. Elected officials had to make their choice within five days to avoid losing their mandate. Another concession came in the form of an order signed by Deputy Minister of Local Public Administration Ionel Flesariu and sent to all prefects and county council presidents, which stated that the ordinance did not apply to companies subordinated to the local government. When denouncing the order in Parliament, Democrat deputy Ioan Oltean mentioned 80 companies subordinated to mayoralties and another 60 subordinated to county councils, meaning that the order exempted some 300 officials in total. The ministry responded that in those cases “there was no conflict of interest, since councilors had no direct private interest in being nominated,” and the councils needed direct control over the companies. But Democrat senator Iuliu Pacurariu pointed that such council representatives received as much as
    Curentul (19 February 2002). After parties withdraw their support, representatives are not obliged to give up the mandate, becoming instead independent deputy mayors.
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    ten million Lei a month (around $300, twice the average salary in Romania), one-third of which was donated to the parties they represented, suggesting that party and personal interests often took precedence over the council’s.6 Responding to the Social Democrats’ non-committal to implement the ordinance and solve their own incompatibility status, the Democrat Party announced that its members will sue, as private citizens, the ‘incompatible’ Social Democrat public officials, but the proposal was not followed through. The party also called unsuccessfully for the Law 215/2001 on local public administration to be implemented immediately. On 29 May several amendments to the draft law on local elected officials proposed by the Democratic Party were rejected by the Social Democrat and the Democratic Union majority on grounds that the constitutionally-granted ‘right to hold property’ was key to a functioning market economy, and public officials could not be denied such a right. As a result, councilors could still represent the local and county councils on the administrative boards of state-owned companies and public utilities, a decision defended by the parliamentary majority as comparable to the standard practice in other European countries. By then, the governing Social Democrat Party had increasingly given in to demands to soften the ban on simultaneously holding public and private office, and rejected repeated requests to make the law more restrictive. During the summer the Social Democrat Party Standing Delegation, headed by party president Adrian Nastase, set up eight working groups for analyzing allegations of corruption against party members. Formed of three to four national party leaders, the groups examined press reports and interviewed local ‘barons’ about their involvement in private businesses and acts of corruption before handing in the final verdict. The first round of discussions involved the Vrancea and Gorj county council
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    Ziua (13 March 2002).
    
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    presidents Marian Oprisan and Nicolae Mischie, Ilfov prefect Teodor Filipescu, and former Iasi prefect Corneliu Rusu Banu, all of whom were declared untainted by corruption. The day before being summoned to Bucharest, Oprisan renounced all party leadership positions for a sixmonth period, and said that “during this time, I want all unfounded accusations against me to be verified because they affect the party’s good name.” Oprisan did not give up the council presidency, and the council’s Social Democrat majority refused to depose him. The press repeatedly accused Oprisan of involvement in illegal dealings, of using his office to intimidate local journalists implicating him in corruption scandals and of pressuring peasants to give up their land for his benefit, while the courts charged him with mismanaging council funds. Filipescu was also exonerated of any wrongdoing, although the press insisted that a taped conversation suggested that he demanded hefty bribes for rigging service tenders.7 Ending in late February 2003, interviews allowed Nastase to browse reports prepared by the working groups, discuss strategies for upcoming elections and membership fee collection, and listen to the local leaders’ pledges that the corruption scandals implicating them had already been solved. Local leaders complained that legislative provisions on conflict of interest threatened their revenues, already meager by Western standards, and disregarded the fact that “mandates are short-term, [while] our businesses are longterm.” While stressing their commitment for rooting corruption out of the Romanian political life and insisting that “no individual with position of responsibility should be given the possibility to use the public office for obtaining personal advantages,”8 top party leaders concluded that there were no Social Democrat ‘local barons’, and implicitly dismissed press allegations exposing corruption scandals
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    involving these ‘barons’. Frustrated with the mass-media’s ‘obsession’ with the subject of corruption, Nastase declared that discussions with local leaders did not aim to “offer journalists any Social Democrat blood” as “their tool was not the scaffold.”9 Yet according to journalists corrupt Social Democrat ‘barons’ existed but were untouchable because of their important financial donations to the party. The press identified 69 major party sponsors who, it claimed, received either top state portfolios or state-owned companies slated for privatization in exchange for their campaign contribution. Social Democrat leaders claimed that the so-called “Club 75,” including party members and private businessmen who gave the party 75 million Lei ($3,500) each, was “a legal non-profit organization carrying out Social Democrat humanitarian projects,” without being able to identify those projects explicitly.10 Trying to define the term ‘baron’, Social Democrat deputy Eugen Nicolicea contended that “the ‘baron’ is a prosperous businessman who eventually is corrupt.”11 Journalist Ovidiu Nahoi suggested that
    “a ‘baron’ represents local ‘power’. The public function is inconsequential, since a ‘baron’ can be prefect, county council president, Parliament member or elected local official. What really matters is the ‘respect’ he gets from local business9
    
    Evenimentul Zilei (22 August 2002). Monitorul (12 February 2003).
    
    Curentul (21 February 2003). According to journalists, Gheorghe Bosanceanu acquired the Constanta Shipbuilding Yard through an offshore company, Aurel Tarau became Bihor prefect and his son was allowed to exit Romania during penal investigations, Aristide Roibu was appointed head of the Senatorial Judicial Committee while standing accused by a Swiss businessman of embezzlement, Corneliu Iacobov stalled investigations into his activity as Moldova Private Ownership Fund head, Sergiu Sachelariu was appointed Transportation Deputy Minister and Gheorghe Dumitrescu became Romania’s general consul to New York. See Evenimentul Zilei (28 August 2002), and Monitorul (3 September 2002). 11 Romania Libera (26 February 2003).
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    men and administrators. The more ‘respect’ translates into fear, the better...A real ‘local baron’ is a businessman and a politician, or at least his close relatives are involved in business. It is a matter of debate whether his business relations helped him enter politics or vice-versa, but [it is certain that his] business is conducted with the state ...We find ‘barons’ in areas where the state is a major player (gas and oil, public works, agriculture, local services) and in areas with a high turnout (retail, alcohol, lumber). State control over the economy, administrative centralization and delayed reforms are the basis of his power. Carefully maintained connections and [clientelistic] relations, state tenders, ‘respect’ imposed from above and support from voters with precarious political culture give ‘local barons’ the sweet feeling of force and permanence.”12
    
    In April 2003 the Sibiu prefect dismissed the mayor, deputy mayor and four councilors of Talmaciu for their incompatibility – the first such case where Ordinance 5/2002 was applied. All six represented the opposition, which argued that the prefect chose to ignore the incompatibility of two other Social Democrat councilors. The prefects are the central government’s representatives in the territory and represent the local administration, which parallels the local government composed of county councils. Whereas local government officials are elected directly by the population on party lists, prefects are appointed by the ruling party. Following much public outcry, the Social Democrats ceased such dismissals, but ignored requests to apply the ordinance to government and opposition members equally. By the spring of 2003, more than a year after the ordinance was adopted, it was evident that efforts to convince local officials to separate their public and private
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    Evenimentul Zilei (26 February 2003).
    
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    offices had failed. True, some officials tried to solve their incompatibility by giving up their political mandate or renouncing their private company management and board position. But ordinary Romanians, journalists and politicians alike admitted that these voluntary renunciations represented the exception, not the rule, and that ultimately the ordinance was unable to delineate the local public administration from its multifaceted personal economic interests. The primary culprit for this state of affairs was the legislative framework, which did not detail the method of applying sanctions for providing false declarations and for failing to choose between the public office and the private business by the official deadline. The ordinance also allowed officials to exit the economic sector only formally, often retaining substantial control over companies and public utilities through spouses, children, other close relatives and trusted friends. If the ordinance aimed to ensure that specific companies were not favored by councilors during tender and contract adjudication, it failed to reach its goal. While top party leaders were busy verifying the background of their colleagues holding positions in the local administration, they remained silent about their personal involvement in the private sector. Since the official information seemed inaccurate, it was left to the press to uncover the business dealings of Parliament and cabinet members and to venture into deciding which ones were in positions of incompatibility,. Usually the Romanian Parliament has been extremely divided between the government and the opposition on almost every single issue, but when it came to regulating the status of legislators and forcing them out of lucrative business positions the house showed remarkable consensus. This was not the first time legislators ignored political cleavages, as over the years they constantly supported proposals for increased honoraria, benefits and perks for themselves. In November 2001 Democrat Union deputy Ervin Szekely introduced in Parliament a legislative proposal 14
    
    declaring the office of deputy, senator and cabinet member incompatible with the position of manager, shareholder and administrative board member of public utilities, state-owned enterprises and public institutions. According to the proposal, Parliament and cabinet members had to disclose their incompatibility in writing and renounce either their political mandate or their business position within 15 days. As Parliament delayed debating the proposal for months, in mid-February 2002 the Romania Libera daily published a list of deputies and senators involved in private companies as significant shareholders or managers. According to the daily, an analysis of the Commerce Registry data showed that the total number of companies Parliament members were part of was larger than the total number of Parliament members (469 compared to 452), suggesting that some deputies and senators were involved in more than one firm. Parliament members managed 293 companies. In terms of party affiliation, the Social Democrats were the most numerous (being shareholders in 198 companies and managing 154), followed by the Greater Romania Party representatives (shareholders in 117 and managers of 59), the Liberals (shareholders in 49 and managers of 17), the Democrats (shareholders in 44), and the Democratic Union representatives (shareholders in 30 and managers of 16). The most active were Social Democrat deputies Viorel Gheorghiu and Iosif Armas, and Democratic Union senator Attila Verestoy.13 Since Szekely’s proposal did not enjoy parliamentary support, in late May the Nastase cabinet approved the draft law on conflict of interest of state dignitaries, whose stipulations applied to the Prime Minister, ministers, deputy ministers, prefects and deputy prefects and their relatives, up to the fourth-degree. According to the Adevarul daily,
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    because the law came thirteen years late and only at the prompting of foreign governments, huge sums of money had already been transferred from the public budget to private pockets. Questioning the cabinet’s willingness to address the issue in all its implications, Adevarul pointed out that more than two years after assuming the mandate the Government’s Secretary General Serban Mihailescu continued to be a company shareholder and Deputy Minister of Tourism Alin Burcea owned a tourism company, in spite of numerous governmental reports claiming that no cabinet member was close to private companies. The daily also criticized the fact that the draft law was not applicable to leaders of governmental agencies and national state-owned companies, many of whom were running businesses on the side.14 Joining the effort, the Evenimentul Zilei daily identified 13 of the 26 cabinet ministers as being involved in private companies, including the ministers of European Integration, Defense, Interior, Labor, Industry, Agriculture, Tourism, Sport and Youth Affairs, Public Information, and the Government’s Secretary General Serban Mihailescu, nicknamed “Miki Bakshish.” Allegedly first among ministers was Environment Minister Petru Lificiu, shareholder in eight companies, and administrator of three of them.15 Another daily, Gardianul, lengthened the list by adding the names of other ministers and deputy ministers, their spouses and sons. The daily continued its description of the “GovernmentFirm” by stating that
    twelve cabinet members have private businesses, big or small, alone or together with their spouses and children. Once becoming ministers, some of them transferred the companies to their spouses to obey the law, at least formally. Others nonchalantly remained company leaders, dividing their time between the affairs of the state and those of their
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    Gheorghiu was shareholder in 16 companies, Armas was shareholder in ten and manager of nine, while Verestoy was shareholder in eleven and manager of six.
    
    Adevarul (23 May 2002). Evenimentul Zilei (30 May 2002).
    
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    own pocket. True, some cabinet members were once private businessmen, building their companies over the years with more or less support coming from local politicians [but] most of them were already Parliament or government members when these private firms were opened and consolidated and used their connections to the political class and the bureaucracy to their own advantage.16
    
    The government vehemently denied such accusations, while ministers claimed that their private businesses were a thing of the past. But from a legal viewpoint withdrawal from a company must be recorded in the Commerce Registry and probed with documents, not just oral statements, conditions most ministers did not fulfill. As a result, the Registry still listed them as associates, managers and significant shareholders in private companies. Continuing the series of revelations, the press detailed the activity of public officials’ spouses and close relatives, alleging that “the practice of having relatives involved in business had become a Social Democrat party policy.” The wives of several prefects, deputy prefects and county council presidents allegedly managed companies directly involved with the governmental bodies headed by their husbands.17 In July 2002 the government’s draft law was introduced in Parliament, where it faced stiff criticism. The opposition charged that the draft, too short to have any real substance, only rehashed stipulations already included in the law on the functioning of the government and the law on local public administration. It also pointed out that the draft provisions unrealistically asked state dignitaries to selfreport situations of conflict of interest as soon as they arose, and did not apply to civil servants, Parliament members and magistrates, being restricted only to ministers and deputy ministers, prefects and deputy prefects. While these
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    arguments called for additional legal stipulations to be formulated, they could hardly justify blocking the proposed law. By late October, the draft law on conflict of interest had already spent four months in Parliament without even being discussed by the specialized committees. Another draft introduced by the Liberal Party in the Chamber of Deputies got a cold shoulder from the house, bent on hampering all attempts to deprive legislators of additional funds. Despite opposition from legislators, the government continued to press on the issue of conflict of interest. In early November the Prime Minister’s Control Office revealed the results of an investigation into the status of ministerial advisers. According to the report, 49 percent of investigated ministerial advisers were also private firm managers or auditors. While no piece of legislation defined this situation as conflict of interest or office incompatibility, Prime Minister Nastase asked advisers voluntarily to choose between their public and private positions. But in his already characteristic style of one step forward, two steps back, only days later Nastase conceded that advisers could represent their ministry as members of the administration boards of subordinated public utilities because in this situation “they hold positions in order to exert an efficient control on behalf of the ministry.”18 Thus, only advisers involved with private companies had to make a choice. By late 2002, international observers were increasingly critical of corruption in Romania. An Open Society Institute report released the day before the European Union meeting in Copenhagen ranked Romania as the most corrupt among countries seeking accession to the Union, deplored the lack of a functional law regulating conflict of interest, and noted that “no minister or high official was ever punished for ignoring the rules of incompatibility. The press reported in detail the auxiliary activities of the ministers, including the almost universal practice of deputy ministers
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    Gardianul (30 May 2002). Evenimentul Zilei (2 September 2002).
    
    Evenimentul Zilei (9 November 2002).
    
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    and other high-ranking officials to sit on administrative boards of state-owned companies.” The report added that “anticorruption strategies are often formal, not supported by political parties, and targeting perpetrators of lesser importance who present no threat to society, while the corrupt individuals from Parliament and government remain sheltered,” and that “the parliamentary immunity, combined with the lack of legislation on conflict of interest, transforms Parliament into a refuge for potential perpetrators who pay political parties to be included on electoral party lists.” In response, the Justice Minister denounced the report as an “outdated list of serious accusations not reflecting reality.”19 Asset Disclosure by Public Officials Asset disclosure was regulated by the Law 115 of 28 October 1996, which obliged elected and non-elected state dignitaries to submit declarations detailing the assets owned at the beginning and at the end of their mandates. According to Article 3, dignitaries also had the obligation to submit such declarations within 15 days of the adoption of the law. State dignitaries included the Romanian President, deputies, senators, and cabinet members. Strictly confidential, asset declarations were to be kept under lock by the head of the institution where the signatory worked. Speakers of the Chamber of Deputies and the Senate, and the Prime Minister, had to submit their declarations to the Romanian President (Article 4). Failure to submit the declaration automatically led to investigations (Article 6) carried out by a special commission formed of two Supreme Court of Justice judges and a prosecutor with the General Prosecutor’s Office (Article 4). Declarations detailed whether the dignitary –
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    Quentin Reed, Corruption and Anti-corruption Policy in the Ten Candidate States of Central and Eastern Europe (CEE) (Open Society Institute, 6 November 2002).
    
    together with his or her immediate family – owned buildings, company shares, art and coin collections, foreign bank accounts, cars, tractors, yachts, jewels, and gold, silver and platinum objects. Since the law was passed only in late 1996, no asset declaration forms were filled in by the state dignitaries who held mandates during the 1990-1992 and 1992-1996 legislatures. The law was an improper tool for preventing dignitaries from abusing their positions of power and responsibility. First, the definition of state dignitary excluded members of the state bureaucracy, local officials, and managers of state-owned monopolies and banks, appointed by the ruling party from among its loyal sympathizers or members. Second, declarations remained confidential, with more sanctions being applied to those who dared to disclose the information than to those who refused to submit such declarations. While the law stipulated that investigations were ‘automatically’ launched following refusal to disclose information, the details of the launching procedure were left out, and nobody was in charge of gathering the declarations and notifying the specialized state organs in case of nonsubmittal. Third, no independent agency verified the accuracy of the declarations, and no specific sanctions for false reporting were included. Asset disclosure remained a purely formal exercise unable to address the real issues of transparency and accountability. Unsurprisingly, few dignitaries took it seriously, and many refused to detail their assets. By 2001 at least five rounds of declaration submission had to have occurred. First were the declarations that had to be submitted within 15 days from the law’s adoption. Then came the declarations marking the end of the 1992-1996 mandates and the beginning of the 1996-2000 mandates, followed by those submitted at the end of the 1996-2000 mandate and the beginning of the 2000-2004 term. As we will see, even dignitaries who voted for the law chose to ignore their obligations. 20
    
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    By early 2002 NATO asked Romanian authorities to rethink seriously the need to provide transparency to asset disclosure, and align the country to European practice in this respect. But the lack of a unique Western model allowed Bucharest to emulate France, the least open Western country. The French legislation asks local and national officials and managers of mixed, publicly and privately owned companies, to submit declarations within two months of nomination or dismissal, but declarations remain strictly confidential. German Bundestag members must declare monthly assets over 15,000 Euros resulted from parallel activities in front of the Speaker, not to the public. Much stringent regulations are in force in the United Kingdom and the United States, where the list of dignitaries is much larger and declarations are open to the public. Within 30 days after accepting a position, the United States federal officials must submit a complex declaration detailing the source, type and value of all assets exceeding $200, debts incurred to persons other than first-degree relatives, gifts over $100 received, positions in for- and non-profit organizations, education and trade unions, and donations to charitable organizations. A House of Commons resolution bans British Parliament members from being remunerated advocates of interest groups, and asks them to submit detailed declarations of financial interests at the beginning of the mandate. Declarations are updated if needed, and entered into the Registry of Members’ Interests open to the public. In February 2002, the Nastase cabinet submitted to Parliament amendments to the Law 115/1996 calling Parliament and government members, magistrates, prefects and leaders of public institutions to submit declarations detailing the assets they owned together with their spouses and minor children, and update them as soon as new assets were acquired. The proposal provided for the publication in Monitorul Oficial part III of the names of dignitaries refusing to submit declarations, but not the publication of the entire asset declaration. Instead, declarations were to become 21
    
    classified information, with access to them being granted only to specialized authorities. Paying lip service to the principle of transparency, the amendments allowed leaders of mass-media outlets to study the declarations, but such requests were granted only for unspecified “well-grounded” reasons. The proposal was introduced in the Senate, being first sent to the Human Rights Committee. During committee debates, the opposition attacked the amendments by pointing out that Monitorul Oficial part III was virtually inaccessible to ordinary citizens. Liberal senator Vlad Popa and Democrat senator Petre Roman asked for asset value to be specified, since “we should be able to ascertain if an individual became richer during his mandate.” They also called for the list of disclosed assets to include art objects, coins and stamp collections, a proposal rejected by the Social Democrat senator Aristide Roibu on grounds that “we do not want declarations to take up 20 to 30 pages and look like novels.” After much debate, the committee restricted the asset list to land, residential buildings, commercial property, cars, yachts, and foreign currency bank deposits over 10,000 Euros, and rejected the need for publicly disclosing such information. Committee chair, Democrat Union senator Gyorgy Frunda, argued that the publication exposed dignitaries to robberies, represented a “temptation for everybody else,” and ultimately was unnecessary, since most assets – houses, land and cars – were highly visible. On behalf of the committee, Frunda suggested that amendments could not apply to current Parliament members, since “rules cannot change during the mandate” and “deputies and senators cannot be presented with obligations they did not assume” at the beginning of their office. For him, there were other unnamed tools that could help authorities and the public to estimate whether the assets were acquired legally.20
    20
    
    Romania Libera (20 September 2002).
    
    22
    
    Shortly afterwards, the amendments received a cold shoulder from the Senatorial Judicial Committee, not surprisingly, given the fact that they introduced restrictions affecting legislators, many of whom were successful businessmen and among the richest individuals in Romania. Following pressure from the government, the committee’s Social Democrat and Democratic Union majority worked out a scheme for not directly turning down the amendments. Instead of continuing debates on the proposal, senators asked the Ministry of External Affairs to draft a comprehensive report comparing European countries in terms of asset disclosure. After a month, the Ministry sent not a concise report, but seven volumes of documents in Portuguese, English, French and German, which the Senate was in no position to evaluate promptly. In December the committee allowed state officials not to report their art collections, and kept declarations out of ordinary Romanians’ reach. It also rejected the proposal that all post-communist officials be required to submit declarations, instead asking only dignitaries in office at the time of the law’s adopted to detail their assets. The committee was unable to clarify the procedure for launching investigations, but specified that the latter could be started by the Justice Minister or the General Prosecutor. Expressing dissatisfaction, Democratic Party deputy Emil Boc said that “Parliament adopts only those laws which satisfy the personal interests of certain public officials, including the Prime Minister,” alluding to Adrian Nastase’s valuable art collection which the committee kept protected from public eyes. Boc also complained that nobody was made responsible for collecting the declarations in view of publication. For Boc, the adopted variant was a strange combination of transparent and untransparent provisions which rendered the bill inapplicable.21 By the time the Senate could start debating the proposal, the government announced plans to include asset
    21
    
    Curentul (19 December 2002).
    
    23
    
    disclosure in its new anticorruption bill. This statement provoked the ire of the legislators, who insisted that such an important bill had to be “democratically” adopted by legislators, the representatives of the Romanian people, rather than being “autocratically” imposed from above by the government. But by mid-February 2003 both the parliamentary majority and the opposition had employed every conceivable trick to postpone and even block asset disclosure. Instead of seeing asset disclosure as an opportunity to protect officials from unjustified accusations, the Romanian political class saw it as a threat to its very credibility. The government’s frustration with a deadlocked process grew stronger under the pressure of international agencies and foreign governments. It is misleading, however, to suggest that the cabinet offered constant support to asset disclosure proposals despite Parliament’s stubborn resistance, or that the issue pitted a supportive parliamentary majority against an unsupporting opposition. Instead, the lines of division cut across the main ruling party, with some Social Democrats being more resistant than others, as well as across the opposition ranks, with some parties and factions showing greater support for the proposal. In March 2002 the government announced that twelve deputies of the 1996-2000 legislature did not submit asset declarations at the end of their mandate. Two-thirds of them represented the former ruling coalition of Christian Democrats, Democrats and Liberals, while only two Social Democrats were found on the list. When pressed to explain their oversight, the twelve deputies invoked all sorts of arguments, some more unconvincing than others. One of the most vehement critiques of the Nastase cabinet and a selfavowed supporter of the anticorruption campaign, Bucharest general mayor and Democrat Party leader Traian Basescu declared that he simply forgot to submit the declaration, admitting that asset disclosure was not among his top priorities. To deflect criticism, other deputies complained that nobody reminded them of their obligation, although the 24
    
    law they themselves adopted did not provide for such an obligation. Following Law 115/1996, declarations had to be submitted to the Chamber of Deputies leadership, but the latter absolved itself of responsibility and announced that the judiciary alone could start investigations at the request of either the Justice Minister or the General Prosecutor, a procedure which was less ‘automatic’ than the law suggested. In response, former adviser to President Emil Constantinescu Mugur Ciuvica denounced Nastase for submitting no declaration in late 1996 to mark the end of his 1992-1996 deputy mandate or the one that had to be drafted within 15 days of the law’s adoption. Since Nastase’s declarations had to reach the Constantinescu presidency, Ciuvica claimed that his allegations were based on first hand experience as a presidential adviser until late 2000. Minister for the Relation with Parliament Acsinte Gaspar defended Nastase for submitting declarations “at the beginning of all his mandates,” a statement he soon contradicted by saying that in fact Nastase submitted them only in late 2000, since before that there was no legal requirement to do so.22 On his part, Nastase claimed that his declarations existed, but that they had been directed to the General Prosecutor’s Office. When the Prime Minister refused to detail the reasons which prompted him to disregard the law and send his declarations to the Prosecutor’s Office instead of the presidency, Ciuvica threatened to petition the Supreme Court of Justice if declarations were not found. Indeed, on 30 April 2002 Ciuvica asked the Court to start verifications of Nastase’s assets, but his request was left unanswered. As in the case of conflict of interest, the Democratic Party was the most active opposition member to tackle the complicated issue of asset disclosure. In late March, the party proposed changes to the Law 115/1996 asking dignitaries to complete their declaration in front of a public
    22
    
    notary, a move that allowed legal action to be taken against false information. It also asked for publishing the declarations in Monitorul Oficial and simultaneously on the internet in order for the disclosure process “to pass the test of significance in the eyes of the public,” and recognize that “a [state dignitary] cannot be his own judge.” The Democrats further proposed a nine-member independent integrity committee to analyze complaints from citizens, facilitate the electronic dissemination of declarations and assess the accuracy of the information, and called for false reporting to be severely punished and for the list of assets also to include expenses incurred during travel abroad, consulting fees received for various services, remunerated positions and economic activities, gifts over 100,000 Lei (around $3), and the interests of close relatives and friends. A Registry of Interests should record ten categories of financial and nonfinancial interests that might affect the behavior of local but not central officials during their mandate.23 Declarations were to be made available to the public in virtue of the law on access to public information. None of these suggestions were supported by the Social Democrat and Democratic Union parliamentary majority. The National Anticorruption Prosecutor’s Office As early as 1997 the European Union recommended that Romania emulate Italy and Spain and set up a central anticorruption structure, but five years were lost with halfhearted measures and failed experiments. It was only in late 2001 that Romania asked Spain for advice in strengthening the fight against corruption. Shortly afterwards, David Martinez Madero of the Spanish Anticorruption Prosecutor’s Office drafted a set of recommendations which were sent to Bucharest in March
    23
    
    Cotidianul (10 April 2002).
    
    Cotidianul (29 March 2002).
    
    25
    
    26
    
    2002. The Martinez report was not made public by the Romanian authorities, which apparently adopted its recommendations only selectively, but instead became a real bone of contention between government and opposition during parliamentary debates on the anticorruption program. Nastase cabinet’s plan to set up a central Anticorruption Prosecutor’s Office was widely acclaimed in the West. During his November 2002 visit to Bucharest, former Italian anti-Mafia prosecutor Antonio Di Pietro commended the Romanian authorities for their political will to root corruption out of politics. In his speech, Di Pietro stressed that politicians “must be ordinary citizens before the law,” while state authorities must be willing to make no compromises when it comes to fighting corruption and organized crime. He further said that the judiciary cannot be efficient unless it is politically independent. Drawing on the Western experience, Di Pietro contended that “there are numerous instances when politicians engage in economic activities or use other people to do that on their behalf. When making the law, [the politicians] with private interests promote their own interests and simply forget about the interests of the people … The fight against corruption is not only a legal problem, but also a moral and educational problem.”24 To bypass a divided Parliament, in April 2002 the Nastase cabinet drafted emergency ordinance 43/2002 on the setting up of the National Anticorruption Prosecutor’s Office, a new central agency styled after the Italian AntiMafia Agency. Part and parcel of the set of promises the Social Democrats assumed during the 2000 electoral campaign, the ordinance was presented as a necessary step for Romania’s integration into the European Union that laid the foundation for a new office not paralleling or competing with already existent structures, but rather assuming the lead in the fight against corruption in the economic sector,
    24
    
    banking and trade systems, and public administration. While promoting the ordinance, Romanian authorities admitted that the new office was just an element of a broader anticorruption program that was yet to be seriously considered. As Justice Minister Rodica Stanoiu stressed, corruption would remain a major national problem “as long as most of the economy is in state hands, as long as the administrative reform is unfinished, as long as there is legislative instability, as long as the living standard and the service sector remain [underdeveloped].”25 Rather surprisingly, plans to set up the Anticorruption Prosecutor’s Office were vehemently criticized by all political parties. Democrat leader Boc denounced the office’s creation as being doomed to failure and falling “well beyond constitutional limits,” and said that what Romania lacked was the political will to fight corruption not specialized institutions. Liberal leader Valeriu Stoica argued that shortage of experts, inadequate control of electoral campaign and party financing, state-owned enterprise privatization, and the meager wages of Romanian prosecutors were factors accounting for corruption. Defending the office, President Iliescu said that “we need an independent structure to take care of [corruption] consistently” not only because this was one of the European Union’s recommendations but also because “the General Prosecutor’s Office deals with tens of thousands of issues and works out tens of thousands of files, and thus we need a specialized anti-corruption structure.” He rejected the charge that the anticorruption campaign would become politicized because the Justice Minister controlled the appointment of the new anticorruption general prosecutor, as “there are no ‘our’ and ‘their’ corrupt individuals. Corruption erodes social cohesion and this problem interests both the government and the opposition.”26 Vowing to make it his
    25 26
    
    Ziua (30 November 2002).
    
    22 (19 June 2002). Jurnalul National (5 February 2002).
    
    27
    
    28
    
    utmost priority, Iliescu said that the fight against corruption is “a matter of life or death for our society,” and that “[Romanians] must give up the practice of using political positions for group or personal advantage.” Showing disappointment that his personal example was insufficient to inspire the political class, Iliescu pledged to keep the new office sheltered from pressures of any kind.27 According to Article 114 of the Constitution, governmental emergency ordinances must muster the support of a simple majority in the legislature before taking effect. As a result, the emergency ordinance 43/2002 was introduced first in the Chamber of Deputies and then in the Senate, being discussed by the specialized parliamentary committees before being debated by the full house. In the Chamber of Deputies, lack of quorum, a long-standing affliction of the Romanian legislative process, impeded the adoption of the ordinance for several weeks. Finally in midApril 2002 the ordinance was adopted in the fourth round with 184 votes for and 64 votes against. The Social Democrat and the Democratic Union majority supported the ordinance, while the opposition rejected it. The vote was preceded by bitter disputes revolving around several themes. The first bone of contention was the competency of the new office. The ordinance stipulated that the new structure investigated corruption cases as defined by the law on the prevention, eradication and punishment of corruption (Law 78/2000) if, regardless of the perpetrators, they resulted in a material damage over 100,000 Euros or a grave disturbance to the activity of a public institution, or were committed by public officials.28 Taking the floor,
    27 28
    
    Liberal deputy Radu Stroe challenged the list of dignitaries who fell under the office’s jurisdiction if engaging in acts of corruption, and pointed out that the list did not include the Romanian President and his staff. At his urging, deputies extended the list to include Supreme Court of Justice judges, presidential and state advisers, high-ranking policemen, county council presidents, the Bucharest general and district mayors, mayors of major cities, public notaries, Financial Guard commissaries, and leaders of the administrative boards of state-owned banks and firms. Stroe further challenged the provision allowing the office to investigate corruption cases producing a “grave disturbance in the activity of a public authority.” By failing to define “grave disturbance,” he argued, the ordinance left room for interpretation and abuse.29 But the version the deputies approved did not elaborate on the meaning of “grave disturbance.” Equally controversial was the nomination procedure for the anticorruption general prosecutor. According to the ordinance, the head of the anticorruption agency was appointed by the Romanian President at the proposal of the Justice Minister. But opposition deputies and the Chamber of Deputies judicial committee asked for the proposal to be made by the Supreme Council of the Magistrates on grounds that the separation of powers principles be observed and the anticorruption campaign remain depoliticized, something impossible if the appointment was controlled by a government representative. Pleading with his colleagues,
    granting non-performing bank loans, using loans/subsidies for unapproved destinations, using insider information or information not destined for the public, and the use by a party leader of influence to obtain personal advantages. Acts associated with corruption were money laundering, false reporting, complicity to corruption acts, illegal selling of proceedings obtained from corruption acts, fiscal evasion and drug trafficking. A Department for the Fight against Corruption and Organized Crime was organized as part of the Supreme Court of Justice. 29 Curentul (19 April 2002).
    
    Monitorul (23 November 2002). Law 78 of 8 May 2000 banned public officials and leaders of stateowned companies, political parties, trade unions, for-profit or non-profit organizations from using their public positions for personal gain, and asked them to disclose their assets within 30 days. Acts of corruption included receiving/giving bribe, traffic of influence, the unjustified depreciation of the value of state-owned assets slated for privatization,
    
    29
    
    30
    
    deputy Boc warned that the fight against corruption turned into a government-controlled political vendetta and, to give more weight to his claims, quoted a statement from the Martinez report reading that “the Justice Minister’s involvement in the prosecutors’ nomination facilitates their subordination to government and even private interests.” The proposal was rejected by the house. A Democratic Union deputy stressed that the cabinet made the appointment procedure of the anticorruption general prosecutor similar to that of the Supreme Court of Justice prosecutor, in accordance to the constitution and the law on judicial organization. Addressing the chamber, Premier Nastase suggested that in drafting the ordinance his cabinet merely followed regulations imposed by the 1996-2000 regime, which allowed the Justice Minister to appoint and dismiss all Romanian prosecutors. He further said that it was impossible for someone occupying a subordinate office in a ministry (the anticorruption general prosecutor) to be nominated by the Romanian President, while his boss (the Supreme Court of Justice prosecutor) was appointed by a minister, and reminded that, for the Supreme Council of the Magistrates to decide the appointment, the law on judicial organization had to be amended. Also during debates, Greater Romania Party deputy Vasile Mois criticized the cabinet for setting up an office with “discretionary powers unmatched by corresponding responsibilities,” which, in his view, remained redundant as long as the General Prosecutor’s Office was also entrusted with the fight against corruption. In a widely publicized statement, Liberal deputy Cornel Stirbei declared that “in Romania one can steal only after becoming a Social Democrat Party member” as that party “acquired a monopoly on theft and corruption.” Deputies also warned that the article allowing anticorruption prosecutors 30 days to gather evidence and identify the perpetrator by obtaining banking, financial and audit documents and intercepting phone, mail and other communications could turn the office into a 31
    
    political police. And the opposition criticized the government’s decision to draft the ordinance rather than submit the legislative proposal for Parliament’s consideration. Boc even went so far as to vow to petition the Constitutional Court against the ordinance, without further elaborating on the ordinance provisions which, in his view, ran counter to the basic law. While none of these criticisms were taken seriously by the majority, the Chamber of Deputies denied anticorruption prosecutors access to professional lawyers’ secrets, continuing to grant them access to all other banking and professional secrets and the right to halve the sentence of perpetrators who facilitated the prosecution of other perpetrators.30 All fourteen cabinet members who were also deputies attended the debates and supported the ordinance, but their massive presence could not obscure the dissensions within the Social Democrat ranks which resulted in a deputy voting against the ordinance and several others leaving the meeting hall rather than participating in the vote. Together with the opposition, Social Democrat deputies Cornel Badoiu and Octavian Mitu unsuccessfully tried to convince the house to accept changes that would break the office’s subordination vis-à-vis the Justice Ministry and forbid it to employ undercover Romanian Intelligence Service officers. After the vote, Social Democrat senator Antonie Iorgovan, the father of the 1991 constitution, criticized the ordinance’s disregard for the separation of powers principle, while Social Democrat youth leader Victor Ponta publicly expressed his worries that the office will remain ineffective unless the legislative framework was completed with the law on witness protection and the law on covered anticorruption officers.31
    30 31
    
    Summaries of parliamentary debates are available at www.cdep.ro. Evenimentul Zilei (12 March 2002). This oversight was rapidly addressed. During the same year, the government drafted the law on witness protection (Law 682/2002).
    
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    After being discussed and voted on by the Chamber of Deputies, the ordinance was forwarded to the Senate, which on 27 June approved it with 92 votes for, six against and five abstentions. As a result, the emergency ordinance 43/2002 was adopted by the legislature as the law on the National Anticorruption Prosecutor’s Office (Law 503/2002). One month later, on 31 July, President Iliescu signed the decree appointing Ioan Amarie, head of the Suceava county Court of Appeals, as anticorruption general prosecutor. The choice stirred some controversy, as five years prior to the nomination Amarie had been involved in a car crash that claimed one life. Though initially charged with murder, Amarie was later acquitted.32 According to the ordinance, the new structure is a national prosecutorial office specialized in the fight against corruption. An autonomous, independent structure in the Public Ministry, the office is headed by the anticorruption general prosecutor and coordinated by the Supreme Court of Justice prosecutor. Its activity is conducted according to the principles of legality, impartiality and hierarchical control, under the authority of the Justice Minister (Articles 1 and 2). Organized in two sections fighting and investigating corruption and activities connected to corruption (Article 5), the anticorruption staff includes prosecutors, police officers, and specialists in finance, customs and the banking system (Article 6), positions incompatible with other public or private positions, except for academic posts (Article 12). The office is the first Romanian structure to employ mixed teams of prosecutors, police officers and economic experts in an effort to identify and prosecute corruption acts. The office is headed by a general prosecutor appointed by the Romanian President at the proposal of the Justice Minister to six-year terms with the possibility of renewal. Appointed and dismissed by the Justice Minister at the proposal of the Supreme Court of Justice prosecutor also
    32
    
    Mediafax (31 July 2002).
    
    33
    
    for six-year terms (Article 8), the anticorruption prosecutors are selected from among individuals with distinguished professional qualities, a good reputation, an impeccable moral standing, and at least six-year long specialized training in the fight against corruption (Article 9). Appointed by the Supreme Court of Justice prosecutor with the Interior Minister’s approval from among police officers with university education and at least six years of expertise in the fight against corruption, the anticorruption police officers conduct criminal investigations under the anticorruption prosecutors’ supervision and control (Article 10). The anticorruption office also employs economic, financial and banking experts, who are appointed by the Supreme Court of Justice prosecutor with the approval of specialized ministries. The experts are considered civil servants responsible for drafting documents and materials that could aid prosecutors in their fight against corruption (Article 11). The agency is allowed to employ a total of 75 prosecutors, 150 police officers and 35 experts (Article 27). Anticorruption prosecutors automatically launch criminal investigations in all corruption cases specified by Law 78/2000 if: 1) regardless of the perpetrators, they resulted in damages of at least 100,000 Euros or a grave disturbance in the activity of a public institution or 2) if their authors are deputies, senators, members of the government, deputy ministers, Constitutional Court judges, Administrative Court members, prosecutors and auditors, legislative council president, ombudsman, National Bank president and vice-presidents, Competition Council president, magistrates, army high officers, public notaries, local and county councilors, mayors, prefects and deputy prefects, managers of public authorities and utilities, national societies and state-owned companies and privatization agencies (Article 13). To gather evidence and identify the perpetrators, the anticorruption prosecutors may supervise banking accounts and phone conversations, and access information systems for a 30-day period, extendable for 34
    
    sound reasons (Article 16). If there are founded suspicions that a crime was or was about to be perpetrated covered police investigators may be used to gather evidence (Article 17). The office offers witness protection and reduced sentences for perpetrators facilitating the identification and criminal investigation of other perpetrators (Articles 18 and 19). As planned, the anticorruption office started its activity on 1 September 2002, but the preceding summer months were marred by noisy negotiations for nominating the personnel of the new structure. While the ordinance provided for anticorruption prosecutors to be selected according to professional criteria, attempts were made to transform their selection into a political process when political parties represented in Parliament and interest groups close to the ruling party asked for the right to have their people nominated to the posts. For example, the association of revolutionaries, representing the participants in the December 1989 Romanian anticommunist uprising and their descendants, asked for one anticorruption prosecutor position.33 But the ruling Social Democrats gave in to none of these demands. Rather, in the name of the need for protecting the identity of the anticorruption personnel, they chose an untransparent nomination process accountable to the Justice Minister. Very little was known about the identity of anticorruption prosecutors, police officers and experts, Minister Stanoiu arguing that “the lack of transparency is understandable, given the fact that the files on which anticorruption prosecutors are working involve a high risk of pressure and intimidation.”34 Also over the summer, Stanoiu ordered the transfer to the anticorruption office of all criminal files drafted during the 1999-2002 period which were related to corruption cases where charges were not laid down or investigations were stopped for various reasons. As
    33 34
    
    Evenimentul Zilei (20 August 2002). Ziua (4 September 2002).
    
    35
    
    a result, a great number of files were transferred from the General Prosecutor’s Division for the Fight against Corruption and Organized Crime to the new structure, along with the five prosecutors working on those cases. The Division continues to investigate those files that involve money laundering, drugs and traffic of persons. The conditions imposed on the hiring of anticorruption prosecutors and police officers, and probably undisclosed political considerations, meant that the office had to start its activity with a drastically reduced personnel but an enormous workload. The agency not only had to continue investigating the corruption cases already opened by other prosecutorial structures but also deal with new cases it itself initiated. To avoid deadlock, the nature of cases and the order in which cases were opened were important for giving the office the credibility it needed to become a viable tool in the fight against corruption and an edge over other anticorruption agencies which had been set up earlier in postcommunist Romania. The office needed not only to find cases that could be expeditiously solved, to show the public its willingness to travel the road from word to deed, but also to tackle the big cases of corruption closely associated with the political class which, for many Romanians, was responsible for the country’s socioeconomic problems. Thus, the office was caught up in a conundrum when trying to decide whether to give more attention to those files received from other judicial structures, which because of their already advanced state presumably required less effort to be closed but generally dealt with petty felonies perpetrated by nonpolitical figures, or to launch investigations into the notorious corruption scandals reported by the press, which involved powerful politicians but demanded more time and resources to be solved. The legislation helped the office neither to cut down its caseload nor to come up with clear criteria for prioritizing cases. Quite the contrary, by making the anticorruption office responsible for investigating both cases resulting in serious damages and those involving 36
    
    politicians the legislation placed it in a difficult position. With no clear definition of “serious damages to a public institution,” the anticorruption office could not turn down transferred cases that involved minor political and administrative public figures. But this type of corruption was not the high political corruption that the public wished to see being brought down to an acceptable level. Equally problematic was the office’s need to be responsive to citizen concerns. Soon after starting its formal activity, anticorruption prosecutors received the first petition filed by a citizen against the Financial Investment Societies. In the early 1990s, Romania opted for a mass privatization program whereby 70 percent of state-owned company assets were sold to domestic and foreign private firms through the State Ownership Fund, and 30 percent were distributed to the population as individual vouchers managed by five territorially organized Private Ownership Funds, later converted to Financial Investment Societies. On 3 September Constantin Dinu asked the anticorruption agency to investigate whether the Investment Societies have cooked up their books, misreported information and brought serious damages to the stockholders. To thousands of Romanians who saw the value of their vouchers rapidly diminishing, it was clear that the societies had mismanaged the vast assets they were entrusted with. According to the press, powerful politicians were handsomely rewarded to use their influence to shelter society managers from criminal investigations. Several times cheated Romanians took to the streets to protest successive governments’ unwillingness to help unravel the complicated network of patron-client relations that brought the societies close to bankruptcy. Each time their demands fell on deaf ears, reinforcing the popular belief that the spoilers belonged or had close ties to the highest echelons of the political class. It took some time before the anticorruption prosecutors were able to delve into the matter. Around the same time, General Prosecutor Tanase Joita announced that the office’s first task was to investigate 37
    
    the “dirty” magistrates, a declaration suggesting that Dinu’s petition was not viewed as a priority.35 The statement was in response to a growing number of press reports uncovering the widespread corruption, nepotism, patrimonialism and favoritism affecting the judiciary. Local analysts saw Joita’s statement either as an unwarranted interference in the activity of the new agency or as an attempt to deflect public attention from the political class to another segment of the society. Whatever the reasons that lay behind it, Joita’s suggestion was seemingly ignored by the anticorruption prosecutors. On 11 September the agency announced that it had already compiled its first file, which reached a staggering 9,000 pages, dealt with a 50 billion Lei (around US$1.7 million) banking fraud carried out in year 2001 in the city of Iasi, and resulted in charges being laid against as many as 20 individuals, none of whom were magistrates or politicians.36 The first high-profile case followed on 22 October when the office arrested Fanel Pavalache, personal advisor to the Government’s Secretary General and a prominent Social Democrat, for demanding a $4 million bribe to prevent the International Bank of Religions from being declared bankrupt. Journalists alleged that in fact Pavalache cashed the bribe on behalf of more powerful political figures whose arrest never followed and whose identity was never publicly disclosed. Whether that was indeed the case remains an open question. The arrest was hailed by Premier Nastase as proof that the new office “had no qualms in carrying out its mission and [in sending] out a message to all those who function, so to speak, at the periphery of politics and are sometimes prone to mixing the public and private spheres.”37 The opposition complained that Pavalache did not belong to the tight circle which has controlled post35 36
    
    Cotidianul (3 September 2002). Ziua (11 September 2002). 37 Evenimentul Zilei (22 October 2002).
    
    38
    
    communist Romania both politically and economically. While grounded to a certain extent, these concerns ignored the fact that it was the first time since 1989 that a prominent member of the ruling party holding a high-ranking state office was arrested for corruption, not a small task in a country where politicians believe they are above the laws and governments always start their anticorruption campaigns with indictments against political opponents. These critics also conveniently omitted to say that top government officials enjoyed immunity and, as such, could not be prosecuted while in office. Indeed, the 1991 constitution does not provide for separation of powers but instead adopts the Westminster-style fusion of powers model, allowing cabinet members to be Parliament members, who in turn enjoy immunity while in office. Article 69 of the constitution reads that “deputies and senators cannot be arrested, searched or tried without the approval of the chamber they belong to and only after being interviewed. The case is heard by the Supreme Court of Justice.” Nor was Pavalache as minor a player as the opposition suggested. In fact, he was a “Club 75” member who made substantial contributions to the ruling party, possibly in exchange for a high state office and/or obtaining protection for his refusal to repay a 1.5 billion Lei ($50,000) loan obtained from a state-owned financial institution. Soon afterwards, head of the Agriculture Ministry Antifraud Department Florica Dinculescu was arrested for receiving a $190,000 bribe from an Italian firm interested to win a tender for the privatization of a Romanian state-owned company. Dinculescu’s accomplice, Christian Democrat leader and former Agriculture Ministry director Dan Jiga, was also arrested.38 While Pavalache’s arrest was criticized as a hasty move designed not to unravel the corruption plaguing top governmental structures but to cover the links between him and key members of the executive, these arrests did offer
    38
    
    Ziua (26 October 2002) and Adevarul (19 November 2002).
    
    39
    
    credibility to the anticorruption office. First, they disproved claims that when the political will was present investigations of corruption cases could never be completed in a country like Romania because of their complex nature and the difficulties inherent to uncovering illicit ties to which nobody wants to admit. The arrests showed not only that difficult cases could be solved, but also that investigations could be made at a fairly rapid pace. Second, the arrests suggested that evidence was not easily lost and older cases could still be brought to justice. More importantly, the arrests pointed to the ruling Social Democrats’ willingness to start the anticorruption campaign with investigations directed against their own members rather than to transform it into a political vendetta against the opposition. The new agency seemed to be independent enough from the executive to strike a blow to individuals dangerously close to the top echelons of political power. While Social Democrat leaders tried to minimize the importance of Pavalache’s arrest, clearly they did not significantly interfere with the agency. This is not to say that Social Democrat luminaries did not try to gain a strong hold of the office or that the office’s independence was absolute rather than relative. President Iliescu acknowledged that obscure forces were at work when reiterating his commitment to protect the agency from political pressure, with Prime Minister Nastase replying that the office did not need anybody’s protection to be truly independent. But this caustic word exchange also reflected the proverbial animosity separating Nastase from Iliescu which stemmed from differences in their age, social background, political stance and policy options. When it came to the fight against corruption, both Nastase and Iliescu recognized its need but disagreed on the methods appropriate for carrying it out. In the same breath Iliescu stated his willingness to help eliminate the “bad habit” of using political positions to satisfy personal or group interests and fight corruption, which "remains a matter of life and death for the Romanian society," and urged state officials to be 40
    
    “models of decency, modesty, fairness, and law abidingness so that the people trust them." Nastase identified the fight against corruption as a governmental priority, and admitted that already adopted measures were insufficient to reduce corruption significantly.39 The office’s efforts to crack down on corruption and fraud were echoed in December by a Supreme Court of Justice ruling which, for the first time, found a former member of Parliament guilty of fraud. Gabriel Bivolaru, a one time Social Democrat luminary and a deputy from November 1996 to March 1999, was sentenced to a threeyear prison term for defrauding the Romanian Bank of Development.40 Bivolaru, who masterminded a notorious banking fraud, had enjoyed the support of the Social Democrat Party leaders, including Adrian Nastase, who constantly voted against limiting parliamentary immunity and in a rare show of support accompanied him to police interrogations. His long-overdue sentencing seemed to mark the overcoming of a psychological threshold for the Social Democrats. Shortly thereafter, the anticorruption agency arrested director of the Bucharest-based Radet public utility Gheorghe Dabela for a 150,000 Euro bribe received from a German investor.41 The arrest was hailed by the citizens, exasperated by ever growing utility costs. After these highly publicized arrests, the office shifted its attention to cases of minor importance. One reason for this move was given by prosecutor Amarie, who in midDecember told a European Commission delegation that his 55 anticorruption prosecutors were overwhelmed by the 700 cases they were working on, most of which involved petty corruption and took away valuable resources that could be directed toward uncovering high-level corruption. Amarie suggested amendments to the Law 503/2002 that would
    39 40
    
    allow his office to investigate only high-profile cases. Another apparent reason for the office’s reluctance to tackle high-level corruption cases was represented by the mistakes and hesitations that followed its earlier high-profile arrests and left the office open to criticism. In the Pavalache case anticorruption prosecutors promised, but never produced, hard evidence in the form of video cassettes. This prompted some Romanians to question the very existence of the recordings, and implicitly the probity of anticorruption prosecutors. Another reason was the agency’s need to keep up a steady number of arrests at a time when no other highprofile case was completed. Things took a turn for the worse when in late December Aurelian Pavelescu, leader of the Romanian Lawyers League, accused the anticorruption office of being unconstitutional and of having no right to launch criminal investigations and make arrests. While organizing the defense of former Transilvania Bank president Iosif Pop, whom anticorruption prosecutors arrested for 30 days, Pavelescu charged that prosecutors destroyed valuable documents that proved Pop’s innocence, and that Amarie authorized Pop’s arrest without even reading the file. The defense attorney also argued that Law 503/2002 ran counter Articles 130 and 133 of the constitution, reading that only the Supreme Council of Magistrates can appoint Romanian prosecutors. Instead, Pavelescu claimed, the Justice Minister had created a new kind of prosecutors – the anticorruption prosecutors – completely subordinated to the ruling party, and as such the office represented a “political police.”42 Despite these charges, the office continued to investigate prominent politicians. In February, Ialomita county prefect Marian Balan and Satu Mare city mayor Horea Anderco came under suspicion, and Arad county leader Gheorghe Medintu was arrested. All three were key
    42
    
    Mediafax (22 November 2002). Ziua (4 December 2002). 41 Curentul (7 December 2002).
    
    Aurelian Pavelescu is not related to Fanel Pavelescu mentioned earlier. Ziua (20 December 2003).
    
    41
    
    42
    
    local Social Democrat leaders enjoying the protection of the party’s top leadership. But other Social Democrat ‘local barons’ whose involvement in corruption scandals was notorious were not summoned by the anticorruption prosecutors. As a result, journalists wondered whether the arrests targeted the weakest links in the Social Democrat party chain or represented the start of a comprehensive effort to rid the party of its corrupt elements. During the same time, Democrat leader Basescu was interviewed by the presidential special commission investigating the activity of ministers following a petition signed by Amarie. Asked about his involvement in selling the Romanian naval fleet during his mandate as a Transportation Minister, Basescu denounced the investigations as “the government’s attempt to eliminate a political adversary.”43 When his office celebrated five months of activity in January 2003, Amarie declared that anticorruption prosecutors were “working on cases involving former and current ministers and deputy ministers,” and denounced both “the attempts of some luminaries to intimidate anticorruption prosecutors” and the launching of “parallel investigations by non-judiciary structures” such as the press and opposition parties. He further said that “interest groups drawn from almost all social categories had tried to have their people appointed to the office,” without naming names. Amarie also listed methods perpetrators used to intimidate the anticorruption prosecutors, including mass media campaigns directed against the office, allegedly meant to distract prosecutors from their work, tarnish their reputation and involve the public in evaluating the cases, as well as overt and covert pressure applied by various public figures in order to influence the outcome of investigations, and even death threats targeting the prosecutors. But after being reprimanded by the government, Amarie denied that current ministers were investigated by his office, a fact which many
    43
    
    saw as a clear indication that the office was not politically independent.44 President Ion Iliescu commended the office for its accomplishments, but also noted the many mistakes surrounding “arrested people whom, months later, the office [exonerated and] asked forgiveness from.”45 As Amarie’s activity report fell short of expectations, in mid-March 2003 Democrat Boc asked the Anticorruption Prosecutor’s Office to submit to Parliament its 2002 activity report, including the number of investigations launched, the number of cases solved, the difficulties and political pressure the office had to overcome, and proposals for amendments to the legislative framework overseeing the office. The deputy claimed that Law 503/2002 provided that every spring the Office must submit to the legislature an activity report on the previous year. However, the law includes no such stipulation and no details on whether such a report had to be submitted for the September – December 2002 period. Without elaborating, Boc further contended that explanations were needed for the office’s failure to apprehend some perpetrators, since it was evident that the anticorruption office was not yet cooperating smoothly with the Justice Ministry, the General Prosecutor’s Office or the Interior Ministry.46 The Office ignored Boc’s request, but made public its activity report for the first trimester of 2003, during which time the Office read 1,161 corruption cases. Of these 222 were solved, and 231 were sent to other offices. In 38 cases charges were laid against 123 individuals for involvement in 287 acts of corruption. Some 26 charged individuals had positions of responsibility and management. By the end of its first year of activity, the office announced it had solved 682 cases. In 119 cases charges were laid against
    
    44 45
    
    Curentul (26 February 2003).
    
    Ziua (24 February 2003). Valcea on line (31 January 2003). 46 Puls on line (14 March 2003).
    
    43
    
    44
    
    429 individuals, 260 of whom occupied positions of responsibility.47 The Anticorruption Bill Recognizing the inadequacy of the legislation, the Nastase cabinet asked Justice Minister Stanoiu to design a complex anticorruption bill banning conflict of interests, describing situations of incompatibility between public and private positions that were to be avoided, and further detailing the role of the Anticorruption Prosecutor’s Office. Ultimately, Stanoiu drafted provisions compelling state dignitaries to publicly disclose their assets both at the beginning and at the end of their mandates, banning state dignitaries and their close relatives from simultaneously holding public office and managing companies bidding for contracts handed out by that office, and envisioning the creation of a national information system that would allow for transparent adjudication of state contracts and privatization tenders. In an unprecedented move, the bill was posted on the government’s internet site and made available to the public soon after being drafted. In its 13 March 2003 meeting, the cabinet approved the bill, not before operating changes suggested by opposition and civil society representatives. The amendments included the Romanian president and court judges among those who must disclose their conflict of interests. Reactions to the bill bordered on condemnation, labeling it an imperfect collection of provisions covering a vast array of situations only partly pertaining to anticorruption. Its omissions and commissions were harshly criticized by opposition parties, which set out to block the bill altogether rather than suggesting ways to improving it. Days after the cabinet endorsed the bill the Democratic Party pledged its support to the Liberal proposal for drafting a
    47
    
    censure motion against the government, with the Greater Romania Party following suit. According to Article 112 of the constitution, Parliament can adopt a censure motion against government with the vote of a simple majority of legislators. The motion needs the support of at least onefourth of deputies and senators to be introduced, and must be discussed by the two chambers within three days. If rejected, the motion cannot be reintroduced in the same session unless cabinet assumes responsibility. If accepted, the government must step down. Stepping up criticism, deputy Boc argued that the bill was discredited by provisions allowing legislators to remain on company administration boards in exceptional cases, and predicted that this "concession, which permitted Social Democrat 'barons' to continue their business," would probably become the rule and "turn the fight against corruption into a mock campaign allowing corruption to go underground." Boc’s greatest fear was that "since such cases are to be voted by a Parliament and government dominated by the Social Democrats, corruption would remain a family affair" benefiting the ruling party at the expense of all other political actors.48 Democrats unsuccessfully proposed changes asking dignitaries to renew their asset declaration on an annual basis, and to disclose their art, coin and stamp collections over 10,000 Euro and loans obtained with preferential interest rates from bankrupt Romanian banks. Civil society representatives denounced incomplete provisions on asset declaration. Renate Weber, Foundation for an Open Society president, explained that a dignitary’s "refusal to submit the declaration at the beginning of the mandate goes unpunished. Submission to the end of the mandate results in the launching of investigations, but results cannot be compared to the data in the first declaration when this does not exist."49
    
    48
    
    Ziua (30 August 2003).
    
    49
    
    Mediafax (28 November 2002). Mediafax (14 March 2003).
    
    45
    
    46
    
    Despite criticism, on 18 March the Social Democrat leadership decided unanimously to support the bill for which the Nastase cabinet assumed responsibility in front of Parliament. According to Article 113 of the constitution, the executive can assume responsibility for a program, a political declaration or a legislative proposal. The cabinet must step down if a no-confidence motion introduced three days later is adopted by Parliament. If the cabinet is not required to step down, the legislative proposal is considered adopted by Parliament. Defending the cabinet’s decision to assume responsibility, Premier Nastase said that, though imperfect, the bill was a clear signal of the government’s and the party’s determination to fight corruption. To win over Social Democrats afraid of losing lucrative positions in the private sector, Nastase mentioned the exception allowing legislators to be company administrative board members. He presented the bill as a measure aimed “to remove a great obstacle to the credibility of the country, its state institutions and political class," and “an important step forward towards honoring our pledges to the electorate, the European Union and NATO.” He also said that the bill rested on an in-depth analysis of Romanian realities and domestic and foreign perceptions regarding corruption in the country, and was designed to offer efficient solutions to prevent and combat corruption by ensuring transparency in public administration and economic activity. The government-drafted law on measures to increase transparency in public administration and economic activity and to prevent and combat corruption contains two books of more than 150 pages in total. Presenting general provisions for fighting and preventing corruption, the first book has five titles dedicated to the transparency of unpaid arrears to the national budget, the electronic management of public information and services, the prevention and punishment of electronic crimes, conflict of interests and incompatibilities in assuming public office, and economic interest groups. The second book specifies amendments to existing anticorruption 47
    
    legislation that would ensure the transparency of public office and business environment, and provisions turning the civil servants into a professional class with clear rules governing recruitment and promotion. The titles range in length from as little as two pages to as much as 34 pages. Public disclosure of the amount of outstanding debts to the state budget is regulated by specifying the obligation on each public authority to post electronically the list of indebted companies. For guaranteeing the transparency of public information and service management a National Electronic System is to be created for the benefit of individuals and firms. Also regulated is the prevention and punishment of internet crime, with emphasis on personal data protection. Breach of confidentiality or tampering with data and information systems result in fines and jail terms. Much anticipated by the public was Title IV of the first book, which regulates conflict of interest and incompatibilities between public offices and private functions. Provisions apply to all civil servants and public officials, starting with the President, legislators and cabinet members, and ending with local and county councilors, mayors and civil servants (Article 69). Conflict of interest occurs when an individual’s personal interests influence his/her activity in a public office (Article 70). Ministers and deputy ministers, prefects and deputy prefects are banned from issuing orders and making decisions benefiting themselves or their first-degree relatives (Article 72). Failure to do so results in decision annulment and a three-year ban on holding public office. The Prime Minister’s Control Office investigates such cases and presents the results to the Premier, who decides the measures to be adopted. The decision can be appealed within 15 days or, if definitive, are published in Monitorul Oficial (Article 73). The Control Office can be petitioned by any individual or can initiate investigations (Article 74). The same provisions apply to local elected officials, in which case investigations are conducted by the prefect (Article 76). For public servants, 48
    
    conflict of interests occur when making decisions and solving petitions put forth by individuals and firms which they are tied to, participating in commissions with other civil servants who are also their first-degree relatives, or when their own and their relatives’ interests influence their decisions. Civil servants must announce their supervisors and abstain from decision making, which is entrusted to other civil servants (Article 79). The same title makes deputy and senator positions incompatible with other public office, administrative and managerial positions in companies, public utilities and institutions, private entrepreneur, economic interest group member or foreign civil servant. Legislators can be cabinet members, professors or researchers. In exceptional cases, Parliament leaders, at the government’s proposal, allow legislators to act as state representatives in the administrative board of public utilities, national companies and public institutions “when the public interest demands it” (Article 82). Parliament members in incompatibility when the anticorruption bill takes effect must inform the chamber leadership within 15 days, and give up either their legislative mandate or their economically-related position within 60 days. Failure to do so results in loss of mandate (Article 83). Similar provisions apply to ministers, deputy ministers, prefects and deputy prefects, who must declare their incompatibility at the beginning of their mandate and whose involvement in commercial activities is approved, on an exceptional basis, by the executive (Articles 84 and 85). Mayors, councilors and their first-degree relatives are also banned from being major shareholders of companies set up by local and county councils (Article 89). Companies managed by councilors and their close relatives cannot bid for contracts offered by the councils (Article 90) and must annul such contracts if they are already agreed upon, otherwise the ‘incompatible’ local or county councilors lose their mandates (Article 92). Mayors and local and county councilors who refuse to give up either their political 49
    
    mandate or their economic position lose their mandate by order of the prefect (Article 91). Civil servants, elected officials and state dignitaries must submit declarations of interests detailing the positions and offices they occupy in associations, foundations, nongovernmental organizations, political parties, paid professional activities, and shareholder in companies, banks, insurance and financial trusts (Article 111). The declaration is submitted within 60 days from the law’s adoption or 15 days from assuming the mandate/office, and must be renewed each time conditions change (Article 112). Declarations are public and submitted as follows: the President and presidential and state advisers submit them to the presidential chancellor, deputies and senators to the house leadership, ministers and deputy ministers to the Government’s Secretary General, prefects and deputy prefects to the prefecture secretary, mayors and councilors to the council secretary, and civil servants to the personnel department of their public institution. The names of those failing to submit the declaration are to be made public on the internet (Article 113). By the time the bill was presented to Parliament, opposition parties had already drafted the no-confidence motion. Days after addressing Parliament, Premier Nastase declared his surprise that the opposition rejected a bill waited for by all parties wishing anticorruption regulations to be enforced. The bill’s many flaws, he said, could be eliminated through dialogue between government and opposition. He deplored the ‘strange’ alliance binding the pro-democratic Liberals and Democrats to the chauvinistic Greater Romania Party for undermining these parties’ political credibility and for showing that the bill "annoyed the opposition, which denounces corruption the loudest,” and suggested that procrastinating the anticorruption campaign could allow the forming of a state-weakening partnership of "mobster economic groups and profoundly corrupt political structures." Nastase stressed that political parties and the 50
    
    civil society have "a joint responsibility to give a clear signal for the purification of the political climate and for the separation of political and economic activities," given the fact that the anticorruption campaign is key to boosting Romania’s international credibility. "We do not understand those who, instead of helping us improve the bill, aim to shoot it down,” Nastase reacted to a proposal to allow the bill to follow the normal route of legislative approval by being discussed by Parliament. He reminded that as early as 1993 a legislative proposal on conflict of interests was submitted to Parliament, without ever being discussed.50 To preempt criticism, Chamber of Deputies Speaker Valer Dorneanu vouched that the cabinet’s move to assume responsibility for the bill was constitutional, and caricatured the motion as a "digest of press articles, lacking in both content and objectivity." Responding to claims that the motion could gather the support of disgruntled Social Democrat legislators, Dorneanu said that members of his party were responsible individuals placing the general interest above their personal interests.51 On 31 March Parliament debated the censure motion "Mafia Suffocates Romania," initiated by 172 opposition representatives, who charged the government with assuming responsibility not for a bill but for “an eclectic amalgam of 15 laws,” for allowing the country to be controlled by mafia groups dominated by Social Democrat leaders, for simulating the fight against corruption while protecting corrupt individuals, and for arbitrarily equating business and corruption while refusing to recognize the real causes of corruption (clientelistic political relations, overbureaucratization, rigged tenders, over-taxation and the politicization of public office and civil servant corps). While poverty was on the rise, “corruption was institutionalized by the [Social Democrat] party-state which vainly tries to give a
    50 51
    
    Mediafax (21 March 2003). Rompres (28 March 2003).
    
    51
    
    measure of legality to financial schemes allowing public funds to be siphoned off by its leaders and political clientele,” the motion read. The document criticized every title of the anticorruption bill, paying special attention to the Premier’s role in deciding appropriate measures to punish conflict of interests and incompatibility, “a blatant infringement of the separation of power principle, which makes the judiciary the Prime Minister’s personal tool.” The asset declaration came under scrutiny for setting the minimal limit for disclosure at 10,000 Euros, a significant sum of money by Romanian standards. In its second part, the motion offered examples of onerous deals involving cabinet members, gave a succinct summary of press reports, but offered no hard evidence to support these accusations. The motion accused Nastase of owning several residential properties, including a model farm whose total value far exceeds the possibilities of an East European dignitary, of supporting Gabriel Bivolaru in exchange for a plot of land in downtown Bucharest, of influencing the outcomes of several privatization deals benefiting the Social Democrat Party more than the Romanian state, and for appointing himself head of the Romanian Hunters’ Association to control the association’s vast resources. Four ministers were criticized for directing public funds to party coffers, and local Social Democrat ‘barons’ were accused of spoiling state resources, whose names were well known to the Romanian public. The opposition reminded legislators of recent anti-governmental strikes where slogans like “Government terrorists are worse than Bin Laden” were heard, before asking the Parliament to vote against the anticorruption bill and for the motion. Instead of rejecting the accusations, Nastase said that the motion was filed by parties whose members were hardest hit by the bill, and defended the government’s decision to assume responsibility as crucial given the deep divisions in Parliament. Citing a government-sponsored opinion poll, Nastase said that 92 percent of respondents supported the bill, 84 percent favored punishment of conflict of interests, 52
    
    95 percent saw asset disclosure as needed, and 96 percent viewed corruption as a problem of utmost importance. Charging that the motion was concerned not with improving the bill, but with blocking the anticorruption campaign, he criticized the motion’s unclear purpose and considerable length, and highlighted the positive response of international organizations and foreign governments to the bill. “The motion includes demagogic, inaccurate, unsupported, slanderous formulas misleading the public opinion," while “the bill is not a public relations stunt, but an important piece of anticorruption legislation,” Nastase said when pleading with legislators to vote for eliminating corruption from administration and economic activity. Transportation Minister Miron Mitrea opined that the Democrats and Liberals criticized the bill because their representatives in Parliament controlled several private companies, a situation banned by the bill. "It is hard to accept a law that takes you out of either politics or businesses", said Mitrea, charging that the opposition wished to perpetuate the grand robbery Romania was subjected to during the 1997-2000 period. Ultimately Parliament rejected the motion with 281 votes against 163, and as a result the anticorruption bill was considered adopted. From Theory to Practice The anticorruption bill set clear deadlines for public officials to solve their incompatibility status and disclose their assets, and this time the government announced its intention to monitor closely the implementation of the bill. Central and local government bodies were asked to conform to the new stipulations and make sure that public officials observe the deadline provided by the bill. Informal seminars on explaining the new legislative requirements were held in each and every institution, and declaration forms were distributed. 53
    
    By the 20 May 2003 deadline, 53 senators and 99 deputies declared themselves ‘incompatible’ (see Table 2). The Social Democrat leaders warned those asking to be allowed to retain both their public office and private position that such favors were to be granted on an exceptional basis only. Earlier 14 deputies had admitted that they needed help to evaluate their status correctly, and as a result the Senate’s Judicial Committee agreed to draft a list of possible situations of incompatibility. After some debate, the committee extended the area of compatibility such that school principals, university presidents, deans and department heads, lawyers, and heads of non-profit organizations, foundations and trade unions could retain both positions. When the committee came under fire for employing a double standard for government and opposition representatives, journalists disclosed long lists of deputies and senators who refused to admit their incompatibility, although their involvement in private business was well documented. While two opposition deputies gave up their mandates, most Parliament members solved their incompatibility status by renouncing their private positions. The 152 ‘incompatible’ Parliament members were asked to present the committee with written proofs from the Commerce Registry that they gave up their involvement in private businesses if wishing to retain their political mandates. In late May the asset declaration forms were posted on the internet sites of central and local governmental institutions and widely commented in the press, to the delight of ordinary Romanians eager to find out how rich their public officials were. Declaration forms included two major sections besides the signature and the warning that incomplete or false information were to be punished. Public officials were first called to disclose the total area, value and acquisition date of their land plots and buildings (apartments, residential and holiday homes, and commercial space), as well as the manufacturing date and type of cars, tractors, 54
    
    agricultural machines, yachts and boats. The other items did not ask for precise information, being instead presented in Table 2: Incompatibility by Political Party
    Total ‘Incompati ble’ Total Number of Deputies and Senators Chamber of Deputies Senate
    
    Social Democrat Party Greater Romania Party Democratic Party Liberal Party Humanist Party Democratic Union Independent/ Minorities Total
    
    53 12 8 12 4 4 6 99
    
    32 10 2 2 5 2 53
    
    85 22 10 15 4 9 8 152
    
    221 106 36 40 16 39 26 484
    
    Source: Cotidianul and Ziua (7 May 2003), and www.cdep.ro.
    
    the yes/no format. Deposits (in Lei or foreign currency) opened at Romanian and foreign banks and loans given to and taken from other parties if greater than 10,000 Euros, other sources of income and activities if resulting in annual revenues over 10,000 Euros had to be declared, alongside with gifts whose value exceeded 300 Euros, and company shares worth more than 10,000 Euros.52 Officials had to report the assets owned by themselves, their spouses and minor children. Table 3 presents a summary of the declarations posted on the internet sites of central governmental
    52
    
    institutions by 1 June 2003. The Ministries of Justice, Interior, Culture, Sport and Youth Affairs, and the Ministry for the Relation with Parliament chose not to make available electronically the asset declarations of deputy ministers. According to their own statements, a majority of deputies, senators, ministers and deputy ministers owned land, at least an apartment, a house and a foreign car, but only a minority had bank accounts and company shares of over 10,000 Euros. The odd elected representative declared a boat, a motorcycle, art collections, valuable jewels, or agricultural machines. Less than 15 percent of officials answered affirmatively to the items referring to commercial space, loans, other assets, other activities, and gifts received. Five state dignitaries declared no assets. At the other end of the spectrum, some public officials listed eleven apartments, nine houses, 66 different commercial spaces, eight cars, and as much as 80 hectares of land. A brief look at declarations reveals that not all public officials took disclosure seriously. Some officials filled in only part of the declaration, others preferred to strike down both answers (yes and no) to the items included in the second section, and still others claimed that they could not list all of their possessions because of lack of space. Some listed most of their assets as having been inherited from parents and well-disposed distant relatives and acquaintances. A handful of Greater Romania Party representatives took the opportunity to oppose and mock the process openly, by either mentioning their pets and cemetery plots or by writing critical comments. While forms clearly asked officials to declare their own and their spouses’ assets together, some (including the Premier) preferred to attach separate sheets detailing spousal assets, a practice denounced by President Iliescu with the words “after marriage, property is common: same house, same bed, same things.”53 When found by the press as omitting to mention two old houses he owned,
    53
    
    A second round of asset declarations asked signatories to declare the Euro equivalent of the total sum of all of their bank accounts.
    
    Party
    
    Monitorul (26 May 2003).
    
    55
    
    56
    
    deputy Culita Tarata insisted that the houses were small and uninhabitable, although television footage seemed to indicate that they were similar to the houses most rural Romanians live in. Table 3: Asset Declarations on Internet (as of 1 June 2003)
    Houses (acquired after 2001) Land plots
    Apartments (acquired after 2001) Institution Company Shareholders
    
    Chamber of Deputies
    
    Senate Gov’t Deputy Ministers **
    
    328 (328) 138 (140) 27 (27) 64 (76)
    
    219 102 13 36
    
    369 (47) 157 (21) 37 (4) 76 (8)
    
    281 (76) 127 (37) 22 (7) 35 (10)
    
    297 (227) 153 (112) 27 (24) 59 (44)
    
    112 58 18 29
    
    74 28 3 10
    
    * No. of public officials who submitted declarations, followed by total number required to disclose their assets. ** Only deputies of cabinet ministers, as listed on the official government site, www.guv.ro.
    
    Law enforcement diminished as one moved further away from Bucharest. Fewer central institutions disregarded the need to make asset declarations available to the public than county-level agencies, which in turn obeyed the law in greater numbers than local governmental bodies. At the county level, fewer offices of the prefect, central government’s representative in the territory, made declarations available electronically. In late September, all county councils but those of Bistrita Nasaud, Covasna, Hunedoara, Ilfov and Satu Mare had published electronically all county councilor declarations. Declarations of nonelected county council staff were available electronically for
    
    25 of the 41 counties, those of prefecture leaders for 31, and those for prefecture staff for 28.54 Declarations presented several limitations drastically restricting their capacity to provide a clear picture of whether assets were acquired through legal or illegal means before or during the mandate. As in the case of incompatibility, the biggest drawbacks were the lack of any real means of verifying the accuracy of the information, which allowed officials to underreport their assets, and a restricted family definition, which permitted an unspecified number of officials to transfer most of their assets to their adult children to protect them from the public eye. Moreover, asset origin remained unspecified. While some officials chose to identify inherited assets and the assets owned by their companies, the practice was not uniformly embraced. Inconsistencies were also found in reporting apartments and houses under construction, and the total value of residential property. Leased cars did not have to be declared, since formally they were owned by car rental companies. Whether by oversight or design, officials had to report their cars’ manufacturing date, not acquisition date. As only bank deposits of over 10,000 Euros were to be reported, officials could hide multiple deposits of up to 9,999 Euros each. Even if the actual amount of deposits were stated, it could not be compared with deposits at the beginning of the mandate. While company shares were declared, it remained unclear whether officials wrote down their market or nominal value, being known that the former greatly exceeds the latter. The country’s Social Democrat leaders congratulated themselves for taking an unprecedented step making Romania the most open European country in terms of asset
    54
    
    Bank Deposit
    
    foreign
    
    Cars
    
    N*
    
    Updated from “Legea 161/2003 – primele luni de la adoptare. Transparenta averilor si declararea intereselor” (Bucharest: Institutul pentru Politici Publice, September 2003) and Valerian Stan, “Cateva observatii cu privire la aplicarea Legii nr. 161/2003 la nivelul Senatului, Camerei Deputatilor si Administratiei Prezidentiale” (Bucharest: n. p., September 2003).
    
    57
    
    58
    
    disclosure by public officials, but the opposition and the civil society remained skeptical of the benefits of what they saw as a futile exercise devoid of content. For one journalist “politicians used this occasion to cover the value of their real assets. To avoid incompatibility, they gave their company shares to family members and trusted friends, fictitiously transferred their houses and buildings, and invested more in art collections, whose real value does not have to be disclosed [because] in Romania there is a generalized practice of ignoring the law, a national sport.”55 Another journalist could not hide his surprise that Romania had so many “poor and honest Parliament members with rich wives and kids,” and that “deputies and senators who control entire counties failed to mention the counties on their declaration.”56 Democrat senator Petre Roman warned that “the government assumed responsibility for the anticorruption bill but not for its consequences,” and asked for methods to verify the accuracy of the reported information to be devised as soon as possible.57 The government embraced the suggestion, and in late May 2003 adopted emergency ordinance 40/2003, amending the anticorruption bill, asking officials to state the real Euro amount of their bank deposits, and giving the Romanian President the right to allow officials appointed by him to retain their business positions. The heads of the intelligence offices, the ambassadors, the Anticorruption Prosecutor and the Supreme Court of Justice prosecutors belong to this latter category.
    
    Conclusion While Premier Nastase has repeatedly declared his satisfaction with it, the anticorruption bill will prove effective only to the extent that it delivers concrete results in the important areas of office incompatibility, asset disclosure and the prosecution of corruption cases involving politicians and public officials. Nastase’s impatience with the subject of corruption, reflected in his words “show me the corrupt to shoot them on the stadium. I am tired of those who speak only of corruption,”58 might come too early. There are several areas which need special attention and resolute action if the bill is to become an efficient tool in the fight against political corruption. Legislative provisions covering office incompatibility should be amended and complemented with clear guidelines for situations when political office cannot be combined with other positions, be they remunerated or not. While this move is unlikely to transform incompatibility into a non-political decision, it could at least guarantee that the list of incompatible situations does not change with every new general election, and that consistent choices are made across successive legislatures. Currently, the incompatibility status is decided by a commission dominated by the ruling Social Democrats. To date the commission has taken great liberties, and has failed to justify fully its verdicts, which continue to be challenged by deputies and senators. Double standards have been applied not only to members of the opposition and the government, with some being denied what others were allowed, but also to non-political positions extremely close in nature, with some but not others deemed incompatible with public office. Even more important is for the political class to recognize that office incompatibility in itself does not address the real issue of conflict of interest, which can cover many other situations where undue influence is applied
    58
    
    55 56
    
    Monitorul (19 May 2003). Cotidianul (21 May 2003). 57 Cotidianul (13 May 2003).
    
    Quoted in Le Monde (11 May 2003).
    
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    in subtler ways by public officials not directly and overtly linked to private interests. For this a national registry of interests detailing the involvement of national and local public officials, their relatives and close partners in economic activity is essential, as are clear sanctions and procedures for launching investigations.59 All these observations apply to asset disclosure as well. Officials found to provide incomplete and false information, and those refusing to provide any, should not only be expelled from the political party they represent but they should also face stiff criminal sanctions, since the requirement to disclose one’s assets is not merely a party policy, but the provision of adopted legislation. Declarations should be verified by an independent commission, at least in those cases where officials have come under intense public scrutiny and have been the subject of numerous accusatory press reports. Even basic verifications contrasting the information provided in the declarations with the information included in the Commerce Registry and other official documents could prove useful and cost effective. In order to follow the spirit of the law, declarations must be submitted both at the beginning and at the end of the mandate to allow for the assets to be compared. Further, inherited assets must be clearly identified alongside salaries and benefits obtained while in the public office, for an analysis of assets from undeclared sources to be seriously undertaken. Again, the end goal of asset disclosure is not to find out how rich or
    
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    The scandal surrounding Minister of European Integration Hildegard Puwak is a case is point. In August 2003, the press revealed that two companies controlled by Puwak’s son and spouse obtained preferential contracts worth a total of 150,000 Euros as part of the European Union “Leonardo da Vinci” program. After Romanian journalists were quick to label this situation conflict of interest, a special European Union factfinding delegation was dispatched to Bucharest. Despite protests from the opposition and civil society, Puwak refused to step down, and the ruling Social Democrats continued to support her.
    
    how poor public officials are, but how exactly they obtained their assets and when collusion took place. In the summer of 2003, the high-profile arrests operated by the Anticorruption Prosecutor’s Office were open to question when it was discovered that, counter to the anticorruption bill, cases had been heard by one judge, not two. This technicality allowed defense teams to petition the Supreme Court of Justice and ask for the release of Pavalache, Medintu and some lesser known individuals the Office charged with involvement in acts of corruption. To prevent the release of Pavalache and Medintu, judges issued new arrest orders for new charges, a measure which the defense teams saw as bordering on illegality. While special efforts were made to keep these two individuals in prison, others were released in mid-May 2003, and their file was resent to the courts to be heard again by two judges. When questioned about the reasons for ignoring the law, judges argued that they did not receive the text of the anticorruption bill before hearing the cases. Blame for the failure to distribute the text of the law was shifted from the Justice Ministry to the General Prosecutor’s Office. These new developments speak for the tenuous relationship between the Anticorruption Prosecutor’s Office and the broader Romanian court system. For the anticorruption campaign to be successful, the Office has to identify and arrest corrupt public officials and the judges must know the law if the accused are not to be let off the hook on mere technicalities. In addition, the legislation governing the Office must be improved to observe the separation of powers principle and allow the anticorruption prosecutors to be nominated by the Supreme Council of the Magistrates instead of the Justice Ministry, and to relax the professional criteria for hiring anticorruption personnel in order to increase the number of prosecutors and police officers and bring their workload to acceptable levels. A true separation of powers might also give the Office a new 62
    
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    impetus for tackling the hard cases of corruption involving high-ranking politicians. Even more important is the fact that the anticorruption bill covers only a limited range of cases of corruption. As such, even if the law were to be fully implemented forms of corruption not covered by the current legislation would continue to go unpunished. Since mid2003 timid steps have been taken to address this issue. In early September, a governmental ordinance banned Parliament members to act as defense councilors in cases related to corruption and criminal charges. Denounced by the mass media, the Romanian public and the international organizations, the practice had not been eradicated because the house consistently refused to consider such proposals. This allowed some Parliament members to provide legal counsel and to defend notorious criminals, while at the same time using their influence to persuade the legislators to adopt proposals favorable to them and their clients. Though bitterly criticized for casting a shadow on the legal profession itself, the ordinance included no sanctions, an oversight which reduced it to a mere recommendation. The ordinance banned future association between Parliament members and perpetrators, but did not ask for already established contracts to be terminated. Further, the ban applied only to representation in the lower courts, but not in the Court of Appeals or the Supreme Court of Justice, where the definitive verdicts are in fact handed down and presumably the need for undue influence is greater as the stakes are higher. Lenient as it was, the ordinance received a cold shoulder from the Chamber of Deputies specialized committees, which rushed to make it even less restrictive. The need to approach the phenomenon of corruption holistically in order to identify the areas requiring the adoption of new legislation, to root out the numerous legislative loopholes and to make the different pieces of legislation accord with each other is accompanied by the need to take concrete steps for implementing the anti63
    
    corruption legislation and punishing the perpetrators. Passing legislation that provides for no real sanctions and includes unlimited lists of exceptional cases, and allowing highranking politicians to use their influence to avoid prosecution undermines the anticorruption campaign and sends the message that the government’s efforts are directed more toward pleasing the international community and the foreign governments than toward addressing the real issue of corruption. As always, the success of the anticorruption campaign rests with both the adoption and the implementation of crucial legislation. Dr. Lavinia Stan is an Assistant Professor of Political Science at St. Francis Xavier University, Antigonish, Nova Scotia, B2G 2W5, Canada. E-mail: lstan@stfx.ca
    
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