B Explanatory memorandum
by Ms Edite Estrela and Ms Krista Baumane, co-rapporteurs
1 Introduction
1. Under its terms of reference
as defined in
Resolution
1115 (1997) (as modified), the Committee on the Honouring of Obligations
and Commitments by Member States of the Council of Europe (Monitoring Committee)
is seized to carry out regular periodic reviews of the compliance
of the obligations entered into upon their accession to the Council
of Europe by member States that are not already under a full monitoring procedure
or engaged in a post-monitoring dialogue.
2. As a result of the Monitoring Committee’s reflection on the
improvement of its working methods and impact, in 2019, the format
of these periodic reviews underwent a considerable modification:
the countries were selected on substantive grounds (and not in alphabetical
order as before), and the reports were accompanied by specific resolutions
and presented, in contrast to earlier practice, independently from
the report on the progress of the Assembly's monitoring procedure.
The objective of producing, over time, periodic reviews on all member
States was maintained.
Note
3. On 6 March 2019, the Monitoring Committee selected three countries,
including Romania, with a view to preparing periodic review reports
and informed the Bureau accordingly. Following the Bureau’s decision
to revise the list of countries which the committee proposed, the
Committee on Rules of Procedure, Immunities and Institutional Affairs
was asked for an opinion on the interpretation of the relevant Rules.
Pending clarification, the Monitoring Committee decided, on 16 May
2019, to suspend the preparation of the periodic review reports,
including the one on Romania. The opinion of the Committee on Rules
of Procedure was adopted in January 2020. On 16 January 2020 the
Monitoring Committee decided to resume the preparation of the periodic
review reports.
4. Furthermore, to avoid any possible future misinterpretation,
the relevant provisions contained in
Resolution 1115 (1997) (as modified) were amended. They now specify that the
preparation and submission of periodic review reports should be
done in accordance with Rule 26 of the Rules of Procedure. The order
and frequency of these reports will be decided upon by the committee
“in accordance with its internal working methods based on substantive
grounds, with the objective of producing, over time, periodic review
reports on all member states”.
5. It is further specified that during the preparation of these
reports, the authorities of the country in question are to be given
a six-week period to provide their comments on the preliminary draft
report transmitted to them by the committee. Lastly, the Assembly
decided that all periodic reviews should be prepared by two co-rapporteurs
from different countries and political groups, as is the case for
all other Monitoring Committee reports, with the exception of reports
on the progress of the Assembly's monitoring procedure.
6. The first co-rapporteurs were appointed on 27 May 2020. However,
the preparation of the report was delayed for a number of reasons
including the electoral campaign and the legislative elections held
in Romania on 6 December 2020; the sanitary restrictions on travel
which prevented the co-rapporteurs from visiting the country in
the first half of 2021; electoral campaigns and parliamentary elections
in the rapporteurs` own respective countries followed by their resignation
as a result of non-re-election and, last but not least, a political crisis
in Romania which started on 1 September 2021, and ended only on
25 November 2021 with the creation of Prime Minister Ciuca`s grand
coalition Government.
7. Against this procedural background we were appointed rapporteurs
on 29 October 2021 (Ms Estrela) and on 21 April 2022 (Ms Baumane).
8. Romania became a member of the Council of Europe in 1993.
Note Upon accession, it entered
into a number of commitments which were subject to monitoring by
the Parliamentary Assembly on the basis of
Order 508 (1995). In 1997, considering that Romania had honoured its
most important obligations and commitments, the Assembly decided
to close the monitoring procedure. The post-monitoring dialogue
started in 2000 and was closed in 2002.
9. In 2007, Romania became a member of the European Union. Upon
its accession, the European Commission established a mechanism
called the Co-operation and Verification Mechanism (CVM), as a transitional
measure, with a view to facilitating Romania’s efforts to reform
its judiciary and step up the fight against corruption. So far,
20 reports have been published including a comprehensive assessment
over the ten years of the mechanism in January 2017.
Note We have used the findings of successive
CVM reports in the present report.
10. We also relied on the European Commission’s rule of law reports,
in respect to the situation in Romania, published on a yearly basis
since 2020 under the European rule of law mechanism. The Monitoring
Committee held an exchange of views on this subject with a representative
from the European Commission on 9 March 2021. The European Union
mechanism provides for a dialogue on the rule of law between the
Commission, the Council, the European Parliament, member States,
national parliaments, civil society and other stakeholders. Reports
on individual countries aim to identify possible problems in relation
to the rule of law as early as possible and to present best practices.
Areas covered by the present report include justice systems, the
anti-corruption framework, media pluralism and freedom, and other
institutional issues linked to checks and balances.
11. The current memorandum is also based on the legal opinions
provided by the European Commission for Democracy through Law (Venice
Commission) on different aspects of the reform of the judicial system prepared
between 2018 and 2022 following requests by the Monitoring Committee.
Moreover, we have also used legal opinions of the European Council
of Prosecutors and the European Council of Judges.
12. We also took into account the findings and conclusions of
the relevant institutions and monitoring mechanisms attached to
the conventions of the Council of Europe to which Romania is a party.
In particular, we based ourselves on the reports prepared by the
Commissioner for human rights, the Group of States against Corruption
(GRECO), the Committee of Experts on the Evaluation of Anti – Money
Laundering Measures and the Financing of Terrorism (MONEYVAL), the
European Committee for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment (CPT), the Advisory Committee
on the Framework Convention for the Protection of National Minorities
and the European Commission against Racism and Intolerance (ECRI).
We studied judgments of the European Court of Human Rights with
regard to areas covered by the present report and took into account
the work of the Committee of Ministers in its supervisory function
concerning the execution of the Court’s judgements. Furthermore,
we got acquainted with recent annual reports on the state of democracy,
human rights and the rule of law prepared by the Secretary General of
the Council of Europe.
13. We have had extensive contacts with international and national
non-governmental organisations and representatives of civil society,
including a series of online meetings held on 20 May 2022, which
we consider a valuable source of first-hand information about the
situation in the country. We shall often refer to their reports in
the current memorandum.
14. We conducted a visit to Bucharest on 4-5 July 2022 to establish
a direct political dialogue with the Romanian authorities on the
concerns identified in the preliminary draft report. We held very
interesting and informative meetings with the Head of the Chancellery
of the Prime Minister, the Minister of Justice and the Presidential
Adviser. In the parliament we met the Deputy Speakers of both Chambers,
the leaders of factions and the members of the delegation of the
Assembly. Concerning the judiciary, we held exchanges of views with the
President of the High Court of Cassation; members of the Superior
Council of Magistracy and two associations of judges (the Association
of Magistrates in Romania and the Forum of Judges in Romania). We met
the Romanian Ombudsperson and her team and last but not least we
met the chief prosecutor of the National Anti-Corruption Agency.
The findings of this visit have been taken into account in the current
report along with the written comments of the Romanian authorities
which we received on 5 August 2022.
15. We believe that the information gathered from such a variety
of sources will have provided us with a balanced overview and enabled
us to prepare an objective report in which we endeavour to assess
the functioning of democratic institutions and the human rights
situation in Romania.
16. Unlike full monitoring and post-monitoring reports, this report
is not a comprehensive study but rather an analysis of developments
in Romania in relation to the specific Council of Europe standards
in the fields considered to be particularly meaningful for the functioning
of democratic institutions.
17. We would like to underscore the excellent co-operation during
the preparation of the present report with the members of the Romanian
delegation to the Assembly, representing both the governing coalition
and the opposition. We also wish to express our gratitude for the
organisation and hospitality during our visit in Bucharest.
2 Political context
18. The December 2016 parliamentary
elections were the first to be held under a new proportional electoral system
adopted in 2015 after being abandoned in 2004. They were won by
the Social Democratic Party (PSD) which obtained over 45 % of the
votes and 154 out of 329 seats in the Chamber of Deputies. Its major
rival party, the National Liberal Party (PLN) got 20.04% and 69
seats.
19. Between 4 January 2017 and 4 November 2019, four PSD led governments
were in office. The period was marked by massive popular protests
against corruption which started as early as January 2017. The first demonstrations
were triggered by the secret overnight adoption by a newly invested
government of the ordinance modifying the Criminal Code and the
Criminal Procedure Code. The changes were aimed at pardoning certain
crimes especially regarding the abuse of power and, according to
critics, were intended to decriminalise the politicians` alleged
corruption and to help them escape ongoing criminal investigations
and prison sentences. This was done in the context of a high number
of investigations against leading politicians for alleged corruption
and related offenses carried out by the Anti-corruption Directorate,
and a considerable number of ministers and members of parliament
convicted by courts of first instance. The government, confronted
with massive protests, repealed the original ordinance and the Minister
for Justice resigned.
20. The second wave of street protests took place between August
2017 and August 2019, following the tabling by the government of
a controversial judicial reform and its subsequent adoption by the
then parliamentary majority under emergency procedure. Street protests
included demonstrations, marches, sit-ins, occupations, pickets,
and were aimed not only at stopping the government`s and parliament`s
amendments to the legislation on the judiciary, perceived as weakening
the fight against corruption, but also called for the dismissal
of the government. The protest in Bucharest on 10 August 2018 which
gathered between 80 000 and 140 000 people according to different
estimates, started peacefully but was marked by police violence
which resulted in 452 people being injured including 3 policemen.
The fourth PSD Government resigned on 4 November 2019 and was replaced
by a minority PLN Government which remained in office until the December
2020 elections.
21. On 26 May 2019, along with the elections to the European Parliament,
a consultative referendum was organised in Romania. The question
put forward was whether to prohibit amnesties and pardons for corruption offences,
as well as whether to prohibit the government from passing emergency
ordinances concerning the judiciary and to extend the right to appeal
against them to the Constitutional Court. Both proposals were approved
by wide margins, with over 85% of the vote. On 27 May 2019, the
High Court of Cassation and Justice upheld on appeal the sentence
of 3.5 years of imprisonment for corruption for Liviu Dragnea, the
leader of PSD and, until then, President of the Chamber of Deputies.
He spent 2 years and 2 months in prison.
22. The most recent legislative elections were held on 6 December
2020. The election process was assessed to be in compliance with
international obligations and commitments for democratic elections
by the Office for Democratic Institutions and Human Rights (ODIHR)
Special Election Assessment Mission.
Note We will refer to some of the shortcomings
identified by the Mission in the relevant sections of this report.
23. The PSD which in 2016 had won a major victory, this time lost
44 seats in the Chamber of Deputies, gaining 28.9% of the vote cast
and 110 seats in the new Parliament. The second winning party was
the National Liberal Party (PLN) which received 25.18% and 93 seats
(plus 24). Another winner was USR PLUS, an alliance established
solely as an electoral alliance between Save Romania Union (USR)
and the Freedom, Unity and Solidarity Party (PLUS) which received
15.37 % and 55 seats (plus 24) and was dissolved in 2021. The newly created
Alliance for the Union of Romanians (AUR) obtained 9.08% and 33
seats; The Democratic Alliance of Hungarians in Romania (UDMR) got
5.74 % and 21 seats and other minority parties received 1.72 % and
17 seats.
24. The voter turnout was approximately 32 %, the lowest since
the democratic transformation of the country, partly due to the
Covid-19 pandemic.
25. Following the elections, a centre-right coalition government
was formed by the PLN, USR PLUS and the UDMR led by Florin Cîțu
as Prime Minister. It was invested by the parliament on 23 December
2020 and governed until the outbreak of the political crisis which
broke out the following year.
26. The political crisis began on 1 September 2021 against a background
of economic difficulties and controversies over the handling of
the pandemic and was triggered by disagreements over the so-called
Anghel Saligny investment programme. The programme was designed
to develop Romanian settlement and was supported by one of the coalition
partners, Prime Minister Cîțu’s National Liberal Party but criticised
by the other, USR Plus. Following a complaint to the Constitutional
Court and two motions of no confidence, the government was dissolved
on 5 October 2021.
27. Two consecutive Prime Ministers nominated by President Klaus
Iohannis failed to form a government. On 25 November 2021, a new
coalition government composed of PSD, PLN and UDMR and led by Nicolae Ciucă,
a former Romanian Land Forces army general won the parliament’s
support.
28. The most recent presidential election was held on 10 November
2019. President Klaus Iohannis, former leader of the PNL who was
initially elected in 2014, was re-elected. It was assessed by the
ODIHR Election Assessment Mission as competitive, pluralistic and
offering voters a genuine choice from a broad spectrum of political
alternatives.
3 Outstanding
concerns and other issues
3.1 Judiciary
29. Since 2004, the judicial system
in Romania has been defined by three Justice Laws: on the Statute
of magistrates (Law 303/2004); on Judicial Organisation (Law 304/2004);
and on the Superior Council of Magistracy (Law 317/2004). These
Justice Laws have received a positive assessment from the European Union
VCM and from the Council of Europe although some concerns with regard
to the independence of the judiciary persisted, particularly concerning
the role allegedly played by the Romanian Intelligence Service in certain
criminal proceedings. However, overall, until 2017, Romania was
praised by the international community including in VCM reports
for its continued progress in fighting corruption and promoting
the independence of the judiciary.
30. As a result of the backslide in the years 2017-2019 in the
areas mentioned above (see also paragraphs 19-21), the situation
of the judiciary in Romania has deteriorated creating a real risk
for its independence. The three Justice Laws were first amended
in May 2018 by the then parliamentary majority under emergency procedure
in a tense political climate impacted by the criticism of the authorities`
methods to fight corruption and by massive popular protests. They
entered into force in July and October 2018. Following widespread criticism
including from the international community and concerns expressed
by the President of Romania and the High Court of Cassation and
Justice, they were referred to the Constitutional Court which identified
some constitutional concerns requiring correction. As a result,
the amended laws were subsequently further supplemented and modified
by five Government Emergency Ordinances Nos. 77, 90, 92 of 2018
and 7 and 12 of 2019.
31. These further changes introduced by the ordinances to already
amended laws have drawn more criticism in Romania including by the
Superior Council of Magistracy and professional organisations, and internationally.
Concerns relate to the procedure for adoption as well as the content
of the amendments and prompted the Monitoring Committee to request
the Venice Commission’s Opinion.
Note
32. With regard to the procedure, the authorities have been accused
of conducting the whole process with excessive haste, not inclusively,
without necessary consultations, and lacking transparency. Concerning
the ordinances, the Venice Commission considered this manner of
amending the laws on justice as highly problematic. Not only does
it undermine the quality of legislation and call into question the
principles of democracy and the separation of powers, but it also
affects legal certainty. Moreover, the patchwork of amendments included
in the laws and ordinances made it very complicated, even for lawyers
to identify the current status quo. Finally, law-making by emergency
ordinances does not permit the Constitutional Court to exercise
the preliminary control of the constitutionality of such legislation.
33. It is also important to emphasise that this legislative process
took place in a difficult context impacted by the results of the
fight against high-ranking corruption. On the one hand, there were
reports of pressure on and intimidation of judges and prosecutors
including through media campaigns; but on the other, alleged cases
of misuse of power by some Romanian magistrates, in particular prosecutors
led to a questioning of the methods used to fight corruption. The
disclosure of secret co-operation protocols signed between the Romanian Intelligence
Service and judicial institutions raised serious concerns with regard
to the judicial independence and the safeguards required to protect
the judiciary against undue interference. Finally, the controversy
over the dismissal of the Chief anti-corruption prosecutor was a
clear illustration of the circumstances in which these controversial
amendments were introduced.
34. Concerning their content, the Venice Commission formulated
a number of concerns in its first Opinion delivered in October 2018.
These were subsequently reiterated in its July 2019 Opinion
Note presented, again, at the Monitoring
Committee’s request following the adoption of the government’s ordinances.
In particular, it emphasised that some important provisions introduced
by the three amended laws and ordinances, seen alone but especially
taking into account their cumulative effect, were likely to undermine
the independence of Romanian judges and prosecutors.
35. The controversial changes included prosecutors` status and
the principles inherent to their functions, the new system for the
appointment and dismissal of chief prosecutors, the role of the
Ministry of Justice therein, and the extended scope of hierarchical
control, new rules for the exercise of judges’ and prosecutors’
freedom of expression, new rules for material liability of judges
and prosecutors, issues related to the status of the Superior Council
of Magistracy weakening its role as the guarantor of the independence
of the judiciary, and the early retirement scheme for judges and
prosecutors with a risk of impact on the efficiency of the judicial system.
Particular concerns were raised by the establishment of a Section
for Investigating Criminal Offences within the Judiciary (SIIJ).
36. The criticism formulated in the Venice Commission’s opinions
was echoed by similar concerns expressed by GRECO in its Rule 34
Ad hoc report adopted in March 2018
Note in reaction to the deteriorating situation
of the Romanian judiciary as well as by the Consultative Council
of European Prosecutors
Note and the Consultative Council of
European Judges.
Note The CVM report published in November
2017, expressed serious concern that the earlier progress in the
reform of the judiciary and the fight against corruption might be
affected by the recent legislative changes. Subsequent CVM reports
in 2018 and 2019 reiterated these concerns.
37. Regrettably, the authorities did not address these concerns
and did not take into account the majority of recommendations made
by the Venice Commission, GRECO and the CVM between the adoption
of the first amendments and the ordinances. Only a few of the Venice
Commission’s recommendations of 2018 have been addressed, for example
the postponement of the early retirement scheme until 1 January
2020.
Note Almost all
of the other concerns identified in 2018 Opinion remained unaddressed
or were even exacerbated.
38. The amended laws as amended again by the ordinances still
contained disproportionate restrictions to the freedom of expression
of judges and prosecutors as well as unqualified provisions on magistrates’
material liability. No attempt was made to specify more clearly
the criteria for the “screening” of magistrates.
Note The
most serious concerns remained, including the appointment and removal
of top prosecutors giving too much power to the Minister for Justice;
Note the creation
of a Section for Investigating Criminal Offences within the Judiciary under
the transitional appointment scheme (already criticised in 2018)
and extending its jurisdiction on appeal or even closed cases (the
latter were declared unconstitutional by the Constitutional Court
decision no. 7/2020); further weakening the role of the prosecution
section of the Superior Council of Magistracy (SCM), notably in
favour of the judges section. In particular, the prosecutor section
had no role in the appointments of prosecutors to the special section,
increasing from one day to the next the seniority requirements for prosecutors
in the National Anti-corruption Directorate (DNA) and in the Directorate
for Investigating Organised Crime and Terrorism (DIICOT) without
considering the impact on these institutions.
Note
39. One of the most strongly criticised adopted provisions was
the newly established Section for Investigating Criminal Offences
within the Judiciary. The Venice Commission raised strong concerns
in particular as regards “the reasons for its existence, its impact
on the independence of judges and prosecutors and on the public
confidence in the criminal justice system and in the Romanian judicial
system, more generally”. It drew attention to possible conflicts
of competence with specialised prosecutors` offices and issues of
effectiveness of centralising all such investigations in one single
location. Rerouting of high-profile cases of corruption, which were
pending with the DNA would undermine both the DNAs anti-corruption
work and the DNA as an institution. Moreover, such a massive transfer
would cause disruption and serious delays. In consequence, the creation
of this Section might undermine the population’s trust in the judiciary.
40. To sum up, amendments to the Justice laws, both introduced
by the parliament and by the ordinances, had a serious impact on
the independence, quality and efficiency of the justice system.
The implementation of the amended laws soon confirmed concerns.
41. Despite all the criticism, the Section for Investigating Criminal
Offences within the Judiciary (SIIJ) was established and became
operational on 23 October 2018. All investigations and prosecutions
involving a magistrate, including past and ongoing investigations
were transferred to the SIIJ even if the magistrate`s role in the
file was marginal. Allegedly, the SIIJ has been used to put pressure
on judges and prosecutors and change the course of some high-level
corruption cases. The situation created uncertainty and pressure
on both individual magistrates` career developments and independence
and for the justice system as a whole.
42. One of the major concerns identified by the Venice Commission
was the frequent use by the government of emergency ordinances to
make legislative amendments. While the Romanian Constitution clearly
indicates that this should be an exceptional measure, legislation
by government of emergency ordinances became a routine putting in
danger State institutions, external checks on the government and
the principle of the separation of powers and weakening legal certainty.
43. The Romanian authorities addressed this concern by organising
a consultative referendum held in May 2019 in which a majority of
citizens voted in support of banning the use of government of emergency ordinances
in the area of justice (see paragraph 21). No significant government
of emergency ordinances have been adopted since then. In February
2021, the parliament rejected a proposal to examine the draft law
to abolish the SIIJ through an emergency parliamentary procedure
and this is to be commended.
44. The minority PLN government which took over in November 2019,
declared its political will to introduce a reform of the judiciary
along the lines recommended by the international monitoring bodies.
On 30 September 2020, the then Minister of Justice presented draft
texts for the comprehensive revision of the justice laws for a six-month
public consultation.
45. The new coalition government which took office in late December
2020 following the parliamentary elections of 6 December 2020, included
the rule of law and the independence of the judiciary as well as
the fight against corruption in its programme. In January 2021 it
adopted a memorandum reflecting the political commitment to address
all pending CVM, GRECO and Venice Commission recommendations. It
also set out a timetable for the adoption of “essential legal provisions
aimed at consolidating the organisation and functioning of the judiciary”.
Note
46. The new government decided to dismantle the SIIJ, indicating
that this would be the first step in the reform of the justice laws
and would be followed by the adoption of three draft laws, respectively
on the status of judges, the judicial organisation and the SCM. The
Minister of Justice pointed out that the SIIJ proved to be an inefficient
body that completely failed to achieve its goal of holding accountable
judges who break the law, adding that it had brought to court only
two cases during each year of its existence. On 29 March 2021, at
the end of the public consultation and following several rounds
of debates with the judiciary, the Minister of Justice requested
the Venice Commission’s Opinion on the draft law dismantling the
SIIJ.
47. The Venice Commission, in its opinion adopted in July 2021,
Note welcomed the Romanian authorities’ intention
to reform the judiciary and to restore the competence of the specialised
prosecutors’ offices such as DNA and DIICOT. It made several recommendations
and in particular criticised a new type of inviolability for judges
and prosecutors going far beyond functional immunity as well as
a new competence of the SCM allowing its relevant section prior
screening in criminal proceedings against judges and prosecutors;
and suggested both should be removed. The Venice Commission also
emphasised that vexatious complaints by private individuals against
judges and prosecutors should be dealt with by the ordinary prosecutorial
service.
48. In January 2022, the Monitoring Committee, decided to ask
the Venice Commission’s Opinion on the draft Law Dismantling the
Section for Investigating Criminal Offences within the Judiciary.
This opinion was adopted in March 2022.
Note The Venice Commission regretted
the haste with which this controversial law on dismantling the SIIJ
had passed through parliament and been promulgated, which has meant
that the Law was adopted before the Commission was able to issue
its opinion. In their written comments, the authorities disagreed
with the opinion that the law had been “hastily adopted”. They pointed
out that the legislative process had gone through all the steps
provided for by the legislative procedure including consultations
with representatives of the judiciary (the SCM had delivered a positive
opinion) and magistrates’ associations. There had also been public
consultation on the draft law, two wide public debates with the
participation of stakeholders and discussions at the political level
within the coalition. The draft had been approved by the government
and adopted by the parliament with a large majority. The Constitutional
Court had validated it by a unanimous decision. The authorities
also stressed that the call for the dismantling of the Section had
been a long-standing recommendation by the Venice Commission, the
GRECO and the European Union – the law No. 49 of 11 March 2022 was
adopted after almost three years of earlier failed attempts.
49. At this point we feel obliged to report on our meetings with
representatives from two judges’ associations. They informed us
that four out of six magistrates’ associations, namely: the Romanian
Association of Magistrates; the Association of Judges for the Defense
of Human Rights; the National Union of Romanian Judges and the Romanian
Association of Public Prosecutors had been opposed to the dismantling
of the SIIJ and claimed that the arguments in favour of dismantling
had been based on serious factual errors resulting from a disinformation
campaign. They also provided us with documentation on their position
and arguments which, according to their words, had never been taken
into account by the critics of the SIIJ. On the other hand, they raised
serious concerns about the practices of DNA prosecutors who had
investigated cases involving judges which, in their opinion, amounted
to pressure with direct consequences on the way the justice act
was executed and clearly endangered the independence of the judges
as expressly stated by the Romanian Constitutional Court in its
Decision 33/2018.
50. While the Section has been dismantled despite the criticism
on the part of the judges’ community, a number of concerns raised
by them with regard to the follow-up remain valid and we urge the
relevant authorities to take into account all opinions expressed
within the judiciary. The situation in which a part of the judicial
community claims that its opinions are ignored is detrimental to
the functioning of the judicial system.
51. On the other hand, we have received detailed information from
the Ministry of Justice on the steps undertaken in order to pursue
and implement the reform following the dismantling of the Section
in compliance with international recommendations. The system provided
by Law No. 49 does not establish a new section but represents an
integral part of the architecture of the national prosecution services.
All of the approximately 6 000 files formerly dealt with by the
Section have been redistributed at the central and local levels.
The system is already operational, and a number of prosecutors have
already been appointed by the Prosecutor General.The procedure for
appointment by the SCM is underway.
52. Moreover the SCM in its written comments pointed out that
the procedure provided by Law No. 49/2022 on the appointment of
prosecutors allows for an effective selection by the plenum of the
SCM in accordance with its role as the guarantor of judicial independence.
53. As dismantling the SIIJ is only the first step in a larger
package of reform measures, the Venice Commission, in its opinion,
encouraged the Romanian authorities to continue this wider reform
and offered any further assistance that may be required.
54. The new Strategy for the Development of the Judiciary 2022-2025
and its related Action Plan were approved by the government on 30
March 2022. The Strategy set clear objectives and a monitoring mechanism.
It identifies, as areas of action, the independence, quality and
efficiency of justice, on the one hand, and access to justice, on
the other.
Note
55. The remaining draft justice laws, namely the Draft Law on
the Status of Magistrates, the Draft Law on the Organisation of
the Judiciary and the Draft Law on the SCM are expected to be submitted
to the parliament before the end of September 2022. Currently they
are still subject to wide consultations; the most recent version
was published on 22 June 2022. The drafts take into account recommendations
of the Venice Commission, judicial instances including the SCM,
magistrates’ associations and individual magistrates. According
to the Minister of Justice, the provisions regarding admission to
the magistracy, the promotion of magistrates, the civil and disciplinary
liability of magistrates, the organisation and functioning of the
Judicial Inspection and the appointment procedure for high-level
prosecutors, have been carefully assessed in order to fully comply
with the principle of the independence of the judiciary; the draft
laws have also been discussed with the European Commission.
56. The Strategy for the development of the Judiciary also aims
at improving the digitalisation of the justice system, through the
implementation of the ECRIS V system, which will provide key functionalities
supporting the digital processing of cases in courts and prosecution
offices, the collection of statistical data and the generation of
certain pre-defined statistical reports, as well as the electronic
transfer of data between different actors, including courts and
prosecution offices.
57. It has to be acknowledged that the perception of judicial
independence among the general public in Romania has significantly
improved between 2020 and 2021 up from 37% to 51%.
Note The reason most often invoked for
the perceived lack of judicial independence remains interference
or pressure from the government and politicians.
58. Some concerns, however, persist. For example, in December
2021, a prominent judge in Romania was suspended by the SCM from
his position for posting videos on social media on the grounds that
this behaviour amounted to behaviour that affects the image of the
justice system. More recently, in May 2022, two controversial judges
perceived as close to President Klaus Iohannis were elected by parliament
to the Constitutional Court.
Note
59. Moreover, as demonstrated above, serious concerns remain as
to the stability and predictability of legislation and the quality
of the legislation process.
60. It is to be commended that the authorities have undertaken
reforms of the Romanian judicial system and committed themselves
to fulfil recommendations formulated by the Venice Commission. However,
the developments of 2017-2019 undermined confidence in the stability
of Romania`s rule of law, independence of the judiciary and the
fight against corruption at the highest level.
3.2 Fight
against corruption
61. The perception of the level
of corruption in Romania remains critical. In the 2020 Transparency International
Corruption Perception Index, Romania scored 44/100 and ranked 19th in
the European Union and 69th globally.
This perception has been relatively stable in recent years.
62. The institutional framework to combat corruption is comprehensible
but the efficient implementation requires sustained political will
and commitment from the government. A National Anti-Corruption Strategy
was in place between 2016-2020 and its co-ordination and implementation
were ensured by the Ministry of Justice. The effectiveness of the
investigation and sanctioning of medium and high-level corruption
has improved.
63. A new National Anti-Corruption Strategy for 2021-2025 has
been declared a key national priority on the political agenda of
the government.
Note The
Strategy has five general objectives: enhanced implementation of integrity
measures at organisational level; reducing the impact of corruption
on citizens; strengthening institutional management and capacity
to prevent and combat corruption; strengthening integrity in priority areas
such as health care, public procurement and local administration;
and increasing the performance of the fight against corruption by
criminal law and administrative means. The first monitoring report
on the implementation of the Strategy is due at the beginning of
2023.
64. In accordance with Article 6 (1) of this legislative act,
on 14 April 2022 the plenum of the SCM adopted the Integrity Plan
including the following objectives: strengthening institutional
mechanisms for identifying and managing corruption risks and vulnerabilities;
continued implementation of general public disclosure standards and
promotion of transparency in decision making; promotion of anti-corruption
education.
65. According to information provided by the DNA, it carried out
a significant number of investigations against leading politicians
for alleged corruption and related offenses and a considerable number
of ministers or members of parliament were convicted. This successful
fight against corruption was widely praised internationally. Between
2013 and 2018 the DNA indicted more than 68 high officials charged
with corruption offences (14 ministers and former ministers, 39
deputies, 14 senators, 1 member of the European Parliament). The
courts have ruled final conviction decisions against 27 of these
officials.
66. Until 2017, yearly CVM reports noted and praised important
progress in the fight against corruption. However, the negative
developments described in the previous section devoted to the judiciary,
have had an inevitable impact on the fight against corruption. The
CVM report from November 2017 expressed serious concerns in this
respect.
67. The disclosure of co-operation protocols between the Intelligence
Service and judicial institutions raised questions over alleged
interference by the intelligence service in the activities of the
judiciary and shed new light on allegations of misuse of powers
by some prosecutors and judges, and on some acquittals in high profile cases
of corruption.
68. Amidst these controversies, the parliamentary majority tabled
amendments to the Criminal Code and the Criminal Procedure Code
laws as well as to the Law on preventing, detecting and sanctioning
acts of corruption. While there was consensus in Romania that a
reform of the criminal codes was necessary in order to implement
relevant EU directives and rectify existing shortcomings, the manner
in which this reform was carried out, is of the utmost concern.
The amendments were adopted on 18 June and 4 July 2018 under urgent procedure
by the parliament with no transparency and very little time for
a genuine public debate. On 28 June 2018, the Monitoring Committee
requested the Opinion of the Venice Commission on these amendments.
69. In its Opinion
Note, the Venice Commission criticised
the procedure of adoption of the amendments which it considered
in no way adequate for a comprehensive reform of two of the most
important and sensitive codes. It then stated that some of the proposed
amendments were in conflict with the international obligations of Romania,
especially regarding the fight against corruption. The Commission
was concerned that, taken separately, but especially in view of
their cumulative effect, many amendments would seriously impair
the effectiveness of the Romanian criminal justice system in the
fight against various forms of crime including corruption-related
offences, violent crime and organised criminality.
70. The Venice Commission recommended that the Romanian authorities
conduct an overall re-assessment of the amendments to both codes
through a comprehensive and inclusive consultation process. In particular as
far as the Criminal Procedure Code is concerned, the rules on communication
on on-going criminal investigations, starting a criminal investigation,
evidentiary thresholds and the inability to use certain forms of evidence
and the right to be informed of and participate in all prosecution
acts should be amended in substance.
71. As far as the Criminal Code is concerned, the provisions regulating
corruption-related offences, in particular bribery, influence trading
and buying, embezzlement and abuse of service, as well as some other provisions
with a more general impact such as those on the statute of limitations,
false testimony and compromising the interests of justice, provisions
on extended confiscation measures, definition of public service,
ancillary penalties should be reconsidered and amended.
72. Similarly, GRECO mandated with the monitoring of the implementation
of the Criminal Law Convention on Corruption (ETS No. 174), in its
ad hoc report of April 2018, noted that the amendments raised serious concerns
both domestically and among other countries due to their potential
negative impact on mutual legal assistance and the capacity of the
criminal justice system to deal with serious forms of crime including corruption-related
offences.
73. Continued uncertainty as regards amendments to the Criminal
Code and Criminal Procedure Code remained an important challenge
in the fight against corruption until February 2021 when the parliament definitively
rejected problematic amendments which were found unconstitutional
in their entirety by the Constitutional Court. We have been informed
that new drafts of the Criminal Code and the Criminal Procedure Code
are in preparation and will be finalised shortly. These new versions
align the provisions of the Codes with relevant provisions of the
Constitution as interpreted by the decisions of the Constitutional
Court.
74. On the other hand, politicians alleged that there had been
cases of misuse of power by prosecutors, which led to acquittals,
some of these allegations having been confirmed. In particular,
following the disclosure, in 2018, of co-operation protocols signed
between the Romanian Intelligence Service and judicial institutions, serious
concerns were raised concerning judicial and prosecutorial independence.
More generally, there have been reports of pressure and intimidation
of judges and prosecutors including by some high-ranking politicians and
through media campaigns. These concerns were amplified by a controversy
in 2018 over the dismissal of the Chief anti-corruption prosecutor.
75. The National Integrity Agency investigates incompatibilities,
conflicts of interest and unjustified wealth. In 2020, this agency
finalised 1 143 cases and applied 204 administrative fines for failure
to submit assets and interest disclosures. Its work was facilitated
by an amendment to the Law regarding integrity in exercising public office
and high officials adopted in July 2020 which allowed for electronic
submissions of assets and interest disclosures.
76. The National Agency for the Management of Seized Assets, established
in 2016, is fully operational. It is tasked with enforcing the confiscation
orders issued in criminal matters. We have been informed that in
2021 the value of assets confiscated by this agency amounted to
57 million € compared to 34 million € in 2020. The National Asset
Recovery Strategy for 2021-2025 includes an action plan with legislative
measures for expanding the Agency’s mandate. A recently adopted
draft law is meant to ensure an increase in the recovery of assets
of crime, the improvement in social re-use of confiscated goods
and the improvement of the rules on the compensation of victims
of crime.
3.3 Execution
of the judgments of the European Court of Human Rights
77. According to the 2021 Annual
report of the Committee of Ministers on the supervision of judgements
and decisions of the European Court of Human Rights (“the 15th annual
report”), as of 31 December 2021, there were 409 judgements (compared
to 347 in 2020 and 309 in 2019) pending against Romania before the Committee
of Ministers including 106 cases under enhanced or standard supervision
and 303 repetitive cases. In total, 41 cases were closed in 2021.
78. Nine principal cases/groups of cases which are most problematic
in terms of implementation and are still subject to the Committee
of Ministers` enhanced supervision procedure are
Note: failure to provide restitution or compensation
for nationalised property (the
Străin
and Others group of cases and the
Maria
Atanasiu and Others pilot judgment); the excessive length
of civil and criminal proceedings and the lack of an effective remedy
(the
Vlad and Others group
of cases); the non-enforcement of domestic judicial decisions (
Săcăleanu and other similar cases);
overcrowding in detention centres (the
Bragadireanu group
of cases); the ineffectiveness of investigations into the violent
crackdown on anti-government demonstrations (the
Association “21 December 1989” and Others group
of cases); the lack of appropriate legal protection and medical
and social care for vulnerable persons with mental disabilities
(
Centre for Legal Resources on behalf of
Valentin Câmpeanu); the inadequate management of the
psychiatric conditions of detainees (the
Ţicu group) and
the conviction of a whistle-blower for having disclosed information
on the illegal secret surveillance of citizens by the intelligence
service and the lack of safeguards in the statutory framework governing
secret surveillance (
Bucur and Toma).
Note
79. On 10 March 2022, the Council of Europe’s Committee of Ministers
exhorted the Romanian authorities to implement the outstanding individual
measures and to adopt legislative reforms to prevent similar violations of
the European Convention on Human Rights (ETS No. 5) as those found
by the European Court of Human Rights in 17 judgments concerning
the non-implementation of final domestic court decisions delivered
against the State or State-controlled companies. This Interim Resolution
concerns 86 applications.
Note
80. In a positive development, as regards Kövesi
v. Romania, the Committee of Ministers noted, inter alia that draft legislation
has been put forward containing provisions aimed at remedying the
gap found in the judgment in the judicial protection afforded to
senior position-holders in the State Prosecution Office against unlawful
removals from office and also at countering the “chilling effect”
outlined by the Court of the applicant’s early removal on other
members of the judiciary.
81. The SCM informed us about its role in the training of judges
with regard to the Court’s rulings. It also provided us with examples
of proposals for legislative reforms resulting from the Court’s
judgments.
3.4 Pluralism
of the media
82. In 2021, Romania was ranked
48 out of 180 countries on the Freedom of expression index established by
Reporters Without Borders. While its position had not changed since
2020, it was 47 in 2019 and 44 in 2018. Representatives of the media
and civil society working in the field of freedom of expression
whom we met online, have confirmed the deterioration of the situation.
83. Legal safeguards concerning media freedom and pluralism are
in place. Defamation was decriminalised, in compliance with recommendations
of the Assembly, in 2006. However, concerns remain in relation to
the implementation and enforcement of the existing legislative framework,
particularly regarding access to information. Reportedly, the EU
General Data Protection Regulation is often invoked by the authorities
as a ground for denying access to information, or to threaten and
prosecute journalists in connection with their investigative reporting.
It is a particularly worrying sign, when authorities` decisions
refusing to provide information are challenged in court, different
interpretations are applied to similar situations. Moreover, in March
2020, temporary restrictions on freedom of information were introduced
following a state of emergency decree due to the Covid 19 outbreak.
84. Broadcast media are supervised by the National Audiovisual
Council, the autonomous public authority under parliamentary control
tasked to safeguard public interest in the audiovisual, grant licenses,
monitor the media and promote media literacy and market fairness.
The 11 members of its management board are appointed by the parliament
for a six-year term and are legally obliged to be politically independent.
However, there are not clear professional criteria for the selection
of the Council’s members and the parliament may dismiss its president
by rejecting the annual activity report, which may undermine the
independence of the regulatory body. Another concern is the lack
of the resources to fully perform its tasks. The draft law transposing
the EU Directive on Audiovisual Media Services ensuring adequate
budgetary resources was published for public consultation in March
2021.
85. Other concerns include the lack of specific safeguards for
editorial independence as it exposes journalists to owner influence
over editorial content. This is aggravated by the fact that transparency
of media ownership is incomplete. This information, which was public
in the past, is no longer communicated by the National Audiovisual
Council on the grounds that it violates data protection legislation.
Furthermore, the 2021 media pluralism country report for Romania
signals the existence of legislative loopholes which allow for a digital
company to be owned by an entity abroad with undisclosed owners.
As a result, key outlets remain controlled by businessmen with political
interests and their coverage is distorted by owners interests.
86. Media may be subject to political pressure, especially when
their revenues depend on State advertising. State advertising is
an important source of income for the media sector which raises
concerns about editorial autonomy and self-censorship of journalists.
In the last two years political parties have become the biggest advertisers,
using loopholes in the current legislation and buying media silence.
But even more shockingly, it was reported to us that there is a
structural problem in the media sector as political parties use
public funds to finance media to influence their content. While
the amounts spent by different parties are published,
Note the contracts
between them and the media are secret, and it is not clear what
the latter are paid for. This lack of transparency, in our opinion,
is potentially harmful for pluralism and freedom of expression.
The representatives of civil society insisted on the rarity of criticism
of the authorities in the Romanian media and the persecution of
those journalists who do not follow this line. Our interlocutors
underscored that this problem did not exist during the election
campaign where the legislation required full transparency and insisted
on the need for the same legal solution outside electoral periods.
87. Our interlocutors working in the field of media drew our attention
to the case of investigative journalist Ms Emilia Sercan who received
death threats and was subject to a smear campaign following her
article of 18 January 2022 alleging that Prime Minister Nicolae
Ciucă plagiarised his doctoral dissertation. On 8 April 2022, the
Committee to Protect Journalists urged the Romanian authorities
to conduct an independent investigation into the harassment and
smear campaign against Ms Sercan, investigate her claims that State officials
participated in the campaign and hold the perpetrators to account.
Note
88. We were also alarmed by the case of investigative journalist
Mr Cătălin Tolontan who revealed a big corruption scandal in the
ministry of health and in local authorities following a tragic fire
in the Colectiv Club in Bucharest. A series of articles in a number
of media, in particular Libertatea and Newsweek pointed to untransparent
procurement procedures. Following a lawsuit for defamation filed
by the mayor of a Bucharest district, a court of first instance
decided the removal of these articles. We were informed that the
mayor has also filed a criminal complaint, investigated by the Directorate
for Investigating Organised Crime and Terrorism against journalists
from several publications for constituting an organised criminal
group as well as for extortion.
89. Civil society interlocutors also reported cases against journalists,
media or civil society by public institutions or business leaders.
Electronic media are also under pressure and there have been reports
of the use of blocking measures by the National Security Directorate,
which allegedly operates without a legal basis, is not independent
and uses unclear criteria for its decisions.
90. A total of 12 alerts including the two cases mentioned above
have been published since 2019 on the Council of Europe Platform
for the protection of journalism and safety of journalists. Only
1 has been resolved in terms of a constructive response by the State.
Note
91. On a positive note, no major concerns with media coverage
of the parliamentary campaign in December 2020 were identified by
the ODIHR Special Election Assessment Mission.
Note It was recommended to the National
Audiovisual Council, however, to consider enhancing its media monitoring
methodology and allocate additional resources to include quantitative
media monitoring. There is also no deadline to review complaints and
redress violations in a timely manner.
3.5 Rights
of persons belonging to national minorities
92. Romania was the first state
to ratify the Framework Convention for the Protection of National
Minorities (ETS No. 157) in April 1995 and since then it has been
subject to the monitoring mechanism of the Convention. The most
recent report of the Convention’s Advisory Committee published in
November 2019,
Note pointed to the continuous progress
in the protection and promotion of the rights of persons belonging
to national minorities living in Romania. The authorities’ commitment
to the principles of the Convention is reflected by the relevant national
legislation, measures for its implementation and financial allocations
in favour of persons belonging to national minorities. The Advisory
Committee states that the situation of these persons has improved substantially
from one monitoring cycle to the next, and that Romania can be considered
as an example of good European practices.
93. Minority groups represent over 10% of the total population.
There are twenty-one officially recognised groups with ethnic Hungarians
being the largest group comprising 1.2 million people (6.1% of the
population). All of them are represented in the government’s consultative
body called the Council on National Minorities
Note. Membership in the Council confers
on each group constitutionally guaranteed representation in parliament through
preferential seats in the lower chamber, the Chamber of Deputies.
The lower threshold for these seats is set at 5% of the average
number of votes needed to obtain a mandate at national level. For
the 2020 elections this threshold was under 800 votes. The UDMR
won 21 seats, other minorities got one seat each in the last parliamentary
elections.
94. The only concern with regard to the rights of persons belonging
to national minorities raised by the ODIHR Special Election Assessment
Mission observing the parliamentary elections on 6 December 2020 related
to the different treatment in the electoral process of the minorities`
organisations represented in the Council and those who were not
represented. The latter were required to collect a number of signatures
equal to 15% of the population of their minority, the former were
exempted from this requirement and received public funding. In its
final report, the ODIHR recommended to amend the electoral legislation
with a view to fostering a level playing field among national minority
organisations both within and outside of the Council of National Minorities
to compete for preferential seats.
95. Romania has succeeded in defining its own model for the protection
of the rights of persons belonging to national minorities based
on their effective participation in the political and socio-economic
life thanks to structural dialogue in the parliament and in the
Council. The success is built around the idea of dialogue and the
consolidation of consensus on policies for minorities.
3.5.1 Hungarian
minority
96. According to the 2011 census,
the Hungarian minority of Romania is the largest ethnic minority consisting
of 1 227 623 people and making up 6,1% of the total population.
97. According to representatives of the Hungarian minority whom
we met, the legislation as recommended by the Framework Convention
and European Charter for Regional or Minority Languages (ETS No.
148) has never been translated into one comprehensive framework
law on minorities in Romania.
Note Furthermore,
there is some discrepancy between existing laws and their implementation
which hampers minority rights.
98. Despite UDMR’s participation in several coalition governments,
some rights, especially relating to language use including in the
administration, symbols, cultural autonomy, city names and education
remain unimplemented mainly due to the resistance of the national
authorities. There are many administrative obstacles that obstruct
the implementation of minority rights. These include a lack of bylaws,
the failure of the national authorities to follow up the enforcement
of minority language provisions and the financial impact which is
to be borne by local communities. The questions of insufficient
funding and the lack of sanctions in case of non-implementation
of some minority rights were raised by several interlocutors during
the hearings and the visit. The failure to allow bilingualism in
inter-ethnic areas has become one of the main obstacles to better integration
of the Hungarian minority and has fostered self-segregation pushing
the Hungarian minority into a parallel society with their own schools,
media, institutions etc.
99. It was also drawn to our attention that the new Administrative
Code adopted in 2019,
Note introduced a
new, more restrictive way of applying minority language rights which
puts into danger existing language rights in some communities.
Note
100. The state of public anti-minority discourse occasionally amounts
to hate speech. Regrettably, some leading politicians have labelled
the Hungarian minority as a threat, generating anti-Hungarian feelings
and campaigns. In 2015, the National Strategy on Public Policy and
Public Security explicitly mentioned the aspiration for territorial
autonomy of Hungarians as an internal threat causing the indignation
of the UDMR. The reference was subsequently removed but there were
more statements in this sense including by President Klaus Iohannis
who in 2020 accused the largest opposition party, the PSD, of “selling
Transylvania to the Hungarians”.
101. During the visit, we were also informed that anti-Hungarian
behaviour and hate speech are common in sport, particularly in football.
Hungarian players are reportedly often targets of xenophobic and
discriminatory chants. Regrettably these incidents remain unpunished
and until recently, no specific legislation was applied to sanction
such behaviour. The recent amendment introduced to Article 369 of
the Criminal Code (see below) will hopefully remedy this situation.
102. The tensions may be illustrated by the violent incidents at
the military cemetery in the Uz Valley which followed some administrative
decisions concerning the cemetery’s appropriation in June 2019.
A violent crowd broke through the police cordon and attacked a peaceful
gathering of members of the Hungarian community praying on site.
While the authorities have clearly condemned the attack, the criminal
investigation regarding anti-Hungarian chants during the incident
(“Out with the Hungarians from the country”) was dismissed by the prosecution
which argued that these slogans could not be classified under Article
369 of the Criminal Code as “incitement to hatred or discrimination”
because the Article applies to a category of persons (for example homosexuals
or persons with disabilities) but not to an ethnic group. As a result,
in February 2021 the European Commission called on Romania to fully
transpose the EU law criminalising hate speech and hate crimes into
the national legislation. We have been informed by the Romanian
authorities that Article 369 has been recently amended by Law No.
170/2022. The relevant provision as it reads now, applies to “persons
on the grounds of race, nationality, ethnicity, language, religion,
gender, sexual orientation, opinion or political affiliation, property,
social origin, age, disability, chronic non-contagious disease or
HIV/Aids infection”.
3.5.2 Roma
equality and inclusion
103. According to the 2011 census,
the Roma population in Romania amounts to 621 573 people which represents
3.2% of the total resident population and it is relatively uniformly
distributed throughout the country. However, the real figure is
estimated to be considerably higher. For example, the Council of
Europe estimates it at 1 850 000 people (8,6 % of the total population).
The difference is explained by the reluctance of the people concerned
to identify themselves as Roma for fear of stigmatisation and discrimination.
104. Regrettably, the negative public perception of Roma is widespread
in Romania as confirmed by several opinion polls.
Note The
educational level of the Roma population is very low. 25% of the
adults over 16 years old declared that they could not read and write.
Women are even more affected by illiteracy and 23% of the Roma population
did not graduate from any school. Roma occupy the most disadvantaged
position in the labour market which is partly the result of the
low level of education but also of the discriminatory attitude of
employers. The employment rate of the Roma population was 35.5%
compared to 58% national employment rate of the population in 2011.
Lack of jobs is the main barrier to the social inclusion of Roma
in Romania. The shortage of social housing persists and forced evictions
from their irregular settlements continue, often without offering any
rehousing solutions. While 25 % of the general population has an
income below the national poverty threshold, this rate stands at
70% for the Roma population.
105. Yet the Romanian authorities have undertaken significant efforts
to remedy this situation. The National Strategy for the Integration
of Roma for the years 2016-2020 based on the framework prepared
at European level, covered four areas in a comprehensive way: education,
employment, health and housing as well as other fields such as social
services and culture. According to the report prepared by the National
Agency for Roma published on 16 March 2020, the Romanian National
Strategy for the Integration of Roma was progressing as planned.
However, it has had little impact so far as its implementation has
suffered from considerable financial constraints.
106. In a positive development, in January 2021, Romania introduced
a law against anti-Roma speech or behaviour which could be subject
to up to 10 years in prison. Punishable behaviour is defined as
“verbal or physical manifestations, motivated by hatred against
Roma, directed against Roma or their properties”. This includes
hate crimes against places of worship, traditions, and the Roma
language.
107. During the Covid-19 pandemic, NGOs and the media reported
several cases of unlawful use of force and allegations of ill-treatment
of Roma by the police.
Note There
were reports on the rise of hate speech and racism targeting Roma
in mass media and social media, especially by opinion leaders and
public figures. Romania’s equality body, the National Council for
Combating Discrimination, criticised a local newspaper, a member
of parliament, a former president and a university professor for
discriminatory statements against Roma.
108. The pandemic has also had a negative impact on the education
of Roma children. According to a study by the NGO Caritas Romania,
an average of only 15% of Roma children participated regularly in
online educational activities during the lockdown (March-June 2020)
as compared to 83% school attendance before the pandemic. The main
obstacles included a lack of technical equipment, overcrowded homes
with a lack of adequate study spaces and the absence of parental
support.
3.5.3 LGBTI
people
109. In June 2020, the parliament
adopted without any public debate a law which, among other things, prohibited
teaching and training about gender identity. In particular, it banned
“activities aimed at propagating the gender identity theory or opinion,
understood as the theory or opinion that gender is a different concept from
that of biological sex and that the two are not always identical”.
110. Human rights groups have condemned the law arguing that it
would legitimise discrimination against the LGBTI community. The
law also raised concerns with regard to freedom of expression and
academic freedom. In December 2020, it was declared unconstitutional
by the Constitutional Court.
111. Civil society points out that there is a hostile attitude
towards LGBTI people in Romania which may render them targets of
violence,
Note as illustrated by the case of
M.C. and A.C. v. Romania before
the European Court of Human Rights.
NoteNote The applicants were
attacked and injured by a group of people on their way home from
an annual gay parade. The Romanian authorities had failed to take
into account possible discriminatory motives and treated it as simple
violence. This is a more general problem which we will highlight
in a sub-section below.
3.5.4 Asylum
seekers and migrants
112. According to United Nations
High Commissioner for Refugees, 6 116 asylum applications were received in
2020 in Romania, most of them coming from Afghanistan, Syria and
Iraq. 81% of asylum applications were rejected in the first instance.
In 2021 the figure amounted to 9 591 applications out of which 500
people were granted refugee status, 626 persons received other forms
of humanitarian protection and 3 190 were rejected which resulted
in a rejection rate of 73,91%.
113. Since the invasion of Ukraine on 24 February 2022, Romania
has been confronted with large waves of refugees from that country.
As of 27 April 2022, over 770 000 Ukrainians had fled to Romania
and about 80 000 of them had decided to stay. On 27 February 2022,
the Romanian Government adopted Emergency Ordinance 15/2022 on the
provision of humanitarian support and assistance by the Romanian
State to foreign nationals or stateless persons in special situations
coming from the area of armed conflict in Ukraine. On 18 March 2022, Government
Decision No. 367 on the establishment of conditions for ensuring
temporary protection entered into force. Due to the unusual pressure
which the asylum system came under, the Romanian Ministry of Internal
Affairs signed an operational plan with the European Union Agency
for Asylum at the end of March 2022. The plan foresees the gradual
deployment of up to 120 EUAA staff and interpreters to the country.
Note Romania is to be commended on its
swift reaction and assistance to a large number of the population
in need for international protection.
114. During our exchange with non-governmental human rights organisations
dealing with refugees and asylum seekers, we learned that there
are some concerns mainly with regard to non-Ukrainian refugees and asylum
seekers. The major issue is public custody provided for by the Asylum
Act as introduced in 2015, which amounts to administrative detention
but is not considered as such. According to the law it should be
applied only in clearly defined cases when there is “a significant
risk of absconding”; in practice, in most cases asylum seekers are
detained on the territory. Whereas prior to 2015, the Aliens Ordinance
required the release of the foreigner from detention as soon as
the first application for asylum was lodged, the current Act prescribes
that an asylum seeker is only released when he or she is granted
protection status; otherwise, they are detained during the whole
procedure including appeals, until deportation in the case of rejection.
115. Other concerns signalled to us by civil society included some
procedural shortcomings such as an insufficient number of interpreters,
a lack of legal advice, insufficient information provided to asylum
seekers and, allegedly, obstructions to their access to justice.
Certain categories of asylum seekers such as victims of sexual abuse,
in particular children, are insufficiently taken care of. There
is no psychological or legal support. More generally, the judicial
system lacks the necessary tools to protect victims of such crimes.
116. We were also informed that trafficking in humans remains a
concern which is partly a result of an unclear definition of smuggling.
3.6 Hate
speech and violence
117. Racist and intolerant hate
speech in public discourse, particularly at local level, as well
as on the internet is a widespread problem in Romania. The main
targets are Roma, the Hungarian minority, LGBTI people and the Jewish
community. Violent attacks against these groups or their property
also occur sporadically. Furthermore, accounts of alleged cases
of racial discrimination and misconduct by police are reported.
This assessment has been confirmed by the civil society representatives
with whom we have exchanged online.
118. According to the assessment of ECRI,
Note the authorities` response to these
reports and allegations is not satisfactory. The level of underreporting
is very high. There is no coherent and systematic data collection
on hate speech and hate motivated violence. Criminal action is almost
never taken and the provisions on racist motivation as an aggravating
circumstance are almost never applied. Lack of awareness among the
law enforcement bodies and the judiciary in recognising hate crimes
hinder proper qualification. This is amplified by the lack of awareness
among the general public. There is no independent body entrusted
with the investigation of alleged cases of police misconduct. The
impunity of perpetrators means there is no effective deterrent.
119. We mentioned above that the question of the reporting and
registration of hate crimes was the subject of the judgment of the
European Court of Human Rights in the case of
M.C
and A.C v. Romania.
Note
120. Since the publication of ECRI report, in a positive development,
a new law penalising anti-Roma speech has been introduced. The National
Strategy and Action Plan for preventing and combating antisemitism, xenophobia,
radicalisation and hate speech for 2021-2023 was adopted in May
2021. One of its objectives is to improve data collection on hate
crime by developing a uniform methodology. To this end, a working
group has been set up including experts from the Ministry of Justice,
the General Prosecutor’s Office, the Superior Council of Magistracy
and the National Institute of Statistics.
121. The recent amendment to Article 369 of the Criminal Code we
described in paragraph 102 above constitutes another positive development.
122. Furthermore, the authorities have provided further training
for law enforcement officials and members of the judiciary on dealing
with hate-motivated violence. For example, between October 2018
and March 2020, a total of 144 professionals (96 judges and prosecutors,
24 police officers and 24 gendarmes) benefited from specific training
on hate crime legislation including the case law of the European
Court of Human Rights. Both initial police education and in-service
training include subjects related to hate crimes.
Note
123. The SCM informed us about the concrete measures undertaken
in the judiciary with a view to combating hate speech. In particular
we learned about thematic controls at the courts’ and prosecutors’
offices regarding the way of investigating and dealing with cases
concerning offences under Article 369, followed by the report to
the SCM with proposals for concrete measures to be introduced in
order to improve the situation. Training sessions have been initiated.
124. Last but not least we were glad to hear during our visit that
new rules facilitating punishment of hate speech in parliament were
introduced into the parliament Rules of Procedure in March 2022
in reaction to some discriminatory statements.
4 Concluding
remarks
125. This report contains a number
of concerns, which we have identified on the basis of the different
sources of information listed in the introduction. We subsequently
discussed these concerns with the Romanian authorities at the legislative,
executive and judicial levels with a view to identifying ways to
improve the situation. We commend our interlocutors’ clear commitment
to democratic values and, their openness and readiness to co-operate
in order to fulfil Romania’s obligations as a member of the Council
of Europe.
126. We note with satisfaction that there is progress towards compliance
with Council of Europe standards in the areas crucial for the functioning
of democratic institutions, namely the judiciary and the fight against corruption.
We are confident that the ongoing reforms will be continued in co-operation
with and following recommendations of the Venice Commission and
the GRECO. We reiterate our conviction that stakeholders should
be consulted on all legislative changes and that their opinion should
be taken into account to the greatest extent possible.
127. There are issues which raise some concern particularly with
regard to media freedom and insufficient transparency concerning
the use of public funds by political parties to finance media in
order to influence their content. We hope that this problem will
be addressed as quickly as possible in order to allow media to fully
play their important role in democratic society.
128. At the same time, we commend the Romanian authorities for
their swift reaction and assistance to a large number of the population
in need of international humanitarian assistance following the Russian Federation’s
aggression against Ukraine.
129. More generally, we very much appreciate the excellent work
carried out by the Romanian Ombudsperson and her team in the continuous
dialogue with the authorities and action in favour of the respect for
human rights. We express our satisfaction at the Constitutional
Court’s unanimous ruling reinstating the Ombudsperson in her position
after the parliament’s decision to dismiss her.
Note
130. We believe that the Council of Europe and its specialised
bodies, and the Parliamentary Assembly in particular, can be instrumental
in assisting the Romanian Parliament and the authorities in pursuing
their efforts to better fulfil their obligations undertaken – like
all other member States- upon accession to our Organisation. We
hope that the current report will encourage all relevant committees
to include the concerns raised in their respective work.
131. In particular, we hope that the Monitoring Committee will
continue to follow the developments in Romania in the framework
of its periodic monitoring. We recommend preparing the next report
on Romania be prepared within five years.
