Romania: Bribery & Corruption

In the area of bribery and corruption, the Romanian Criminal Code (hereinafter referred to as “RCC”) includes the following crimes: receiving/giving bribe (art. 289–290 RCC), traffic peddling (art. 291 RCC) and buying influence (art. 292 RCC). It should also be noted the provisions of art. 308 RCC, which stipulates the incrimination of these crimes even if they are committed by other person than public officials, but with reduced limits of prison sentences. The anticorruption Romanian legislation also includes the specific Law no.78/2000, which defines and completes the legal framework in this area, also providing for some more particular crimes and specific prohibited conducts. It also should be noted the existence of Law no.571/2004 regarding the protection of the employees from the public authorities, public institutions and other units who report any violations of the law.

As per Law no.78/2000, corruption crimes fall under the specialised competence of investigation of the National Anticorruption Directorate (hereinafter referred to as “DNA”), whilst less significant corruption crimes (in terms of bribes or prejudices) are to be investigated by the regular Prosecutors’ Offices. DNA is a department specialized in the prevention, discovery and sanctioning of corruption, within the Prosecutors’ Office with the High Court of Cassation and Justice, with its own legal personality. This institution mainly deals with the investigation of corruption crimes of medium and high level.

Passive bribery (receiving bribe) is defined in art.289 RCC as the action of the public servant who, directly or indirectly, for themselves or on behalf of others, solicits or receives money or other undue benefits or accepts a promise of money or benefits, in exchange for performing, not performing, accelerating or delaying the performance of an action which falls under purview of their professional duties or with respect to the performance of an action contrary to their professional duties, constitutes a violation of the law and shall be punishable by no less than 3 and no more than 10 years of imprisonment and the ban from exercising the right to hold a public office or to exercise the profession or the activity in relation to which they committed the violation. There is an alternative form, which stipulates that the action provided under par.1, committed by one of the persons provided under art.175 par.2 RCC, shall constitute a criminal offense only when committed in relation with the performance or delaying the performance of an action related to their legal duties or related to the performance of an action contrary to such duties. Therefore, for this category of persons (persons exercising a public interest service) it is not a crime to receive money for performing or accelerating their professional duties. Active bribery (giving bribe) is defined in art.290 RCC as the promise, the giving or the offering of money or other benefits in the conditions provided under art.289 shall be punishable by no less than 2 and no more than 7 years of imprisonment. However, the person who offers or gives bribe and denounces the action to the criminal investigation bodies prior to their acknowledgement of the facts will not be punished.

The difference between the two categories exists only when it comes to limits of the sanctions. The standard incrimination of receiving bribe is sanctioned from 3 to 10 years of imprisonment, while offering bribe is sanctioned from 2 to 7 years of imprisonment. The aggravated form stipulated by Law no.78/2000, where the sanctioning limits are raised by a third, is applicable to the following public officials (clerks): a person who exercises a public dignity function; a judge or a prosecutor; a person within criminal investigation bodies or a person who has the competence to sanction for contraventions; a member of an arbitration court. By “public official” the Romanian legislation understands the person who, on a permanent or temporary basis, with or without remuneration: a) exercises attributions and responsibilities, established under the law, in order to achieve the prerogatives of the legislative, executive or judicial power; b) exercises a function of public dignity or a public function of any nature; c) exercises, alone or together with other persons, within an autonomous administration, another economic operator or a legal person with full or majority state capital or of a legal person declared to be of public utility, attributions related to the achievement of the object of its activity. Also it is considered as a clerk, within the meaning of the criminal law, the person exercising a service of public interest for which he was invested by the public authorities or who is subject to their control or supervision regarding the performance of said public service. When it comes to private persons, as described by art.308 RCC, the penalty limits are reduced by a third.

According to art.289 par.3 CC, the money, valuables, or any other benefits received as a bribe shall be subject to confiscation and when such can no longer be located, the confiscation of the equivalent shall be ordered. Moreover, the money, valuables or any other benefits shall be confiscated from the bribe giver if he offered or promised to them, but his offer was declined. However, if the bribe giver previously announced the authorities about the bribe that he was going to offer, the money, valuables or any other assets given shall be given back to the person who provided them, be it the bribe giver or the authorities. In order to ensure that the prejudice will be at some point recovered, the prosecutor can order asset freezing measures. According to art.112 RCC, the following shall be subject to special confiscation: a) the goods produced by committing the deed provided by the criminal law; b) goods that have been used, in any way, or intended to be used to commit an act provided by the criminal law, if they belong to the perpetrator or if, belonging to another person, he knew the purpose of their use; c) the goods used, immediately after the commission of the deed, to ensure the escape of the perpetrator or the preservation of the use or of the product obtained, if they belong to the perpetrator or if, belonging to another person, he knew the purpose of their use; d) the goods that were given in order to determine the commission of a deed provided by the criminal law or to reward the perpetrator; e) the goods acquired by committing the deed provided by the criminal law, if they are not returned to the injured person and insofar as they do not serve to compensate him; f) the goods whose possession is prohibited by the criminal law.

When a person is convicted for receiving bribe, the Court must apply, along with the imprisonment penalty, the complementary penalty consisting of the ban from exercising the right to hold a public office or to exercise the profession or the activity in relation to which they committed the violation, for a duration between 1 and 5 years after the conviction was served.

The expenses for hospitality, travel and entertainment that are paid from public funds are regulated accordingly to Government Decision no.714/2018, which establishes certain thresholds for different categories of officials and expenses. Private funding for public servants regarding such expenses can be interpreted as a bribe. There are no specific regulations for foreign public officials and thus they have to comply with the general rules applicable to all persons while in Romania.

Yes, political contributions are strictly regulated through the provisions of Law no.334/2006 regarding the financing of the activity of political parties and of elections campaigns. Thus, all the political parties have the obligation to publish in the Official Gazette of Romania the list of natural and legal persons who made donations in the previous fiscal year and whose cumulative value exceeds 10 minimum gross basic salaries per country, the list of individuals and legal entities granted loans in excess of 100 gross minimum basic salaries per country, as well as the total amount of confidential donations, respectively the total amount of loans with a value of less than 100 minimum basic salaries per country received, until April 30 of the following year. Upon the receipt of the donation, it is mandatory to verify and register the identity of the donor, regardless of its public or confidential nature.

No, there is no regulation regarding the facilitation payments in Romania. Therefore, all payments in relation to the professional duties of the receiver can be considered a bribe in Romania, even if they were made before, at the same time or after the performance of the duties, if it was done in connection to such performance of duties by the clerk.

The general rules for criminal defence are applicable, both from a procedural perspective (e.g. provocation to the crime by a state agent, illegality of the evidentiary procedures, etc.) or a substantial perspective (e.g. providing other explanation for the nature of the funds or for the lack of connection between the public duties and the payment, etc.). As always, the balance between circumstantial evidence and clear evidence of guilt is always tilted towards a conviction or an acquittal by the judge, during trial, through the verdict.

Compliance programs can be very efficient tools in order to mitigate the risk of accusations for bribery (mainly) against corporations and its representatives. However, these could be effective only if it can be proved, based on the compliance programme and on their own subjective position, that they did not have the intent to offer bribe and that they respected the internal and/or legal provisions regarding bonuses, prizes and fees, which to be strictly delimited through internal regulations. Moreover, the liability for crimes of corruption can not be per se reduced/eliminated even if it is proven that such compliance programs have been followed by the perpetrators (natural or legal persons). More exactly, even if a person proves having respected and applied all the internal rules and regulations, one can still be accused of perpetrating such crimes.

Passive bribery (receiving bribe) can be committed only by individuals – public officials or persons from the private sectors. However, also individual or corporate entities can be held liable for active bribery if the legal conditions for corporate criminal liability are met. The institution of the criminal liability of a legal entity supposes that legal entities, except for the state and public authorities, are criminally liable for crimes perpetrated as to their object of activity or in their interest or in their name. In regard to public institutions, these are criminally liable for criminal offences perpetrated in exercising an activity which can be an object of public domain. The legal framework is established by art.135 RCC: “(1) The legal entity, except for the state and of public authorities, is criminally liable for criminal offences perpetrated in performing their object of activity or in their interest or name. The public institutions are not criminally liable for criminal offences perpetrated in performing an activity which can not constitute an object of private domain. […] (3) The criminal liability of a legal entity does not exclude the criminal liability of a physical person which contributed to the perpetrations of the same offence”. Furthermore, on the basis of the criminal law territoriality principle, the RCC admits the possibility that foreign legal entities which commit crimes in Romania be held criminally liable, to the extent in which the other conditions stated by the Romanian criminal law are fulfilled.

In terms of co-existence of the liability of the two categories, physical and legal entities, the RCC provides that the criminal liability of legal entities does not exclude the criminal liability of individuals who contributed to perpetrating the deeds – the two liabilities can coexist and even overlap. The RCC does not provide any criteria for limiting these responsibilities, hence, at least in theory, the possibility exists that by perpetrating a crime the physical person also triggers the criminal liability of a legal entity (especially in the case of a small company, where the guilt of the legal entity can be identified with the guilt of its management, which in fact is limited to the person who perpetrated the crime).

No, there are no such public guidelines for corporate compliance programs or manuals in Romania. There were only several public campaigns describing regulations applicable at the time and the creation of a hotline to denounce corruption (e.g. https://www.pna.ro/sesizare.xhtml). Furthermore, there is no referential case law in this respect.

It should be noted the existence of Law no.571/2004 regarding the protection of the employees from the public authorities, public institutions and other units who report any violations of the law. Through this law, the persons who submits any kind of notice (complaint or letter) about an infringement of the law, can benefit from a certain protection from the public authorities. According to the provisions of Law no.571/2004, the principle of good faith is granted to a person who decides to denunciate the perpetration of a crime, according to which the person employed in a public authority, public institution or in another budgetary unit among those provided in art. 2, who made a notification, being convinced of the reality of the state of affairs or that the deed constitutes a violation of the law. Nevertheless, also the RCC provides some type of protection for the persons who denunciate certain crimes of corruption (bribery giver and influence purchaser), if the discloser of the act/crime is prior to the acknowledgement of the criminal investigation authorities about the respective crime.

More recently, a bill initiated by the Government, meant to transpose the European Integrity Warners Directive (Whistleblower Directive) passed the Senate vote in April 2022, moving towards the decision-making vote of the Chamber of Deputies. Even if the adoption procedure is an urgent one, Romania is already late with the transposition of this Directive, whose deadline was exceeded on December 17, 2021. Once the law is adopted, especially companies with more than 50 employees will be targeted by a new set of obligations. The EU Directive 1937 / 2019 (as is the Romanian bill) establishes a series of measures designed to protect those who draw attention to irregularities encountered in a company or its illegal practices. The directive stipulates that certain companies will be obliged to establish, by January 1st, 2023, internal procedures or channels for receiving notifications of warnings in the public interest and protection measures for them. In the European directive, they are called integrity warnings. An important provision introduced concerns the exoneration of liability of whistleblowers in the public interest. Thus, in the event of legal proceedings, including defamation, infringement of copyright, professional secrecy, confidentiality and protection of personal data, the criminal and civil liability of these whistleblowers cannot be triggered.

Romania holds a comprehensive national strategic framework in regard to the fight against corruption, based on the participation of different institutional actors at both local and national levels. The current National Anticorruption Strategy foresees the voluntary involvement of a significant part of public administration, including the local public administration and state enterprises, as well as law enforcement agencies, the Public Ministry, the courts and civil organisations (NGOs). The prevention tools are based on corruption prevention plans developed by each participating institution through self- and risk assessments and on mutually agreed methodologies, as well as inter pares assessments. The Ministry of Justice has, in addition, launched an evaluation of the strategy with a view to developing a new strategy for the upcoming period. However, the effectiveness of investigating corruption cases and providing for proper sanctions has suffered amid considerable pressure on the legislative and institutional frameworks. In the 2013-2017 frame, the institutions that were involved in the investigation, the prosecution and trial of medium and high level corruption cases have had consistent, relevant results. Starting 2018, despite the fact that institutions continued to investigate and prosecute high-level corruption offences, both the DNA and the Prosecutors’ Office have reported a series of setbacks with respect to the results of combating corruption (the degree of acquittals in courts of law for DNA cases reaching a whopping 53% in 2019, 32% in 2020 and 24% in 2021). The fact that, for a long time, the executive positions of those institutions were occupied on an interim basis has also affected their ability to cope with constant, ongoing pressure and professional challenges.

The recent criminal investigations are focusing on the crimes involving the production, import and distribution of medical masks and other devices by different companies. The prosecutors performed several searches at different headquarters of companies and there are also some criminal cases sent to be judged by the Court. Undoubtedly the Covid-19 pandemic had an impact in the investigation of the crimes, respectively the activity of all the Prosecutors’ Offices has been reduced during the last year.

It should be noted that in 2020 DNA has had Mr. Crin Bologa appointed as chief prosecutor. Meanwhile, the activity of the Direction was similarly reduced, the investigation of the former head administrator of Unifarm (the public centralised structure to acquire all pandemic medicines and devices), who was accused of requesting a bribe of EUR 760,000 in order to conclude several contracts for medical products, being the most relevant case investigated in this area. Furthermore, it should be also noted the case of a DNA judicial police office, who requested the amount of EUR 1,1 million from a businessman in order to ensure the closing of a DNA criminal investigation against him, file which was publicly presented as being the biggest bribery caught in flagrante in all DNA records.

In addition, there are many cases closed by DNA since the new management, as the investigations had been dragged on for years without any relevant investigation performed or evidence gathered. Nonetheless, there are many other media-frenzy cases which are still stagnant, without any relevant information as to their status or finalisation date. During 2021, the registration and settlement of cases related to crimes within the competence of the National Anticorruption Directorate in connection with the COVID-19 pandemic continued yet no significant cases, names or illegal amounts were made public.

Statistically, out of the 175 files registered from the date of declaring the state of emergency (respectively from 16.03.2020) to 31.12.2021, there were still 89 criminal cases with this object. In 2021, 27 cases were resolved, out of which in 7 cases regarding 19 defendants it was ordered to notify the courts through 3 indictments and 4 plea agreements.

Yes, government decisions can be challenged according to the provisions of Law no.554/2004, which stipulates the conditions for the administrative challenges against normative acts that are issued for/against individuals. For the general applicability ones, one can formulate an exception of illegality, but only during a trial regarding the violation of certain rights. Another possibility is to formulate an exception of unconstitutionality against certain legal provisions but, again, this can happen only during a trial in which the criticised legal provisions are applicable and their application is considered as violating the Constitution. The decisions of the prosecutor can be challenged before their hierarchically superior prosecutor or before a Court, depending on the nature of the decision. In the latter case, the decisions through which a case prosecutor decides to stop the criminal investigation in a file can be challenged also before a judge (after it is challenged at the hierarchically superior prosecutor).

The most relevant, yet indirect, is Law no.129/2019, which is the transposition of the 4th AML Directive – (EU) 2015/849, replacing the former Law no. 656/2002 regarding money laundering. The 5th AML Directive – (EU) 2018/843 and the 6th AML Directive – (EU) 2018/1673 have also been implemented within the same law, at later stages. The amendments and additions to the existing legal framework are in line with the standards of the International Financial Action Task Force, in order to ensure concrete mechanisms to identify and monitor the categories of reporting entities concerned.

Certain changes in some corruption-related incriminations, such as the abuse in office, have been vehiculated in the last years, but none of them has been adopted by the Parliament and, at this point, it is very likely that no reform in this domain will be made in the near future. In this respect, the Decision of the Constitutional Court no. 405/2016 created quite a big impact in ongoing cases (criminal procedures and trials), as it limited the crime to breaches of only primary legislation (laws and government ordinances) and not to other subsequent legislation (secondary or tertiary).

Lastly, as mentioned earlier, there are certain incipient legal initiatives to adopt and implement the Whistleblowing Directive no. 2019/1937.

Romania is part of the following international anticorruption related treaties and instruments: Council of Europe Criminal Law Convention on Corruption, entered into force in Romania since 01.11.2002; Council of Europe Additional Protocol to the Criminal Law Convention on Corruption, entered into force in Romania since 01.03.2005; Council of Europe Civil Law Convention on Corruption, entered into force in Romania since 01.11.2003; United Nations Convention against Corruption, ratified by Romania since 02.11.2004. Romania is also a member of the Council of Europe’s Group of States against Corruption (French: groupe d’États contre la corruption, “GRECO”).

In the Romanian criminal procedure no lawyer-led investigations are applicable. Gathering of evidence prior to criminal intimation of the relevant investigative authorities is a practice but usually this gets verified by the prosecutors. For example, relevant registered discussions or hard drives used can be submitted to the criminal investigation authorities (before the start of a criminal file) and this could help the investigation, but as mentioned before these recordings or material evidence will still be verified by a prosecutor and afterwards it will be corroborated with other evidence gathered.

The fight against high-level corruption, declared a strategic objective since 2005 and a threat as great as terrorism or other serious crimes, is however very much linked to Romanian state’s political priorities, which for the moment has led to the topic disappearing from political discourse, media attention and strategic documents. To this end, the National Strategy for the Defence of Romania for the period 2020-2024, which represents the vision of the Presidency on priorities and which outlines the main lines of action for key institutions, no longer makes any reference to the fight against high-level corruption. On the other hand, Romania has assumed, as a strategic objective, the fight against especially high-level corruption (in relation to the monitoring performed by the EU through the MCV).

The prevention of bribery and corruption is, at least at a declarative level, a very important objective of all public organisations but also of private entities. In the private sector, based on European know-how and important imports of foreign businesses, AB&C rules and regulations are usually created and implemented at internal levels, especially in medium and big companies, foreign but also Romanian. However this ensures that macro-crime is better prevented, while small incidents (small bribes) are still seen as tolerable at a general perception level, even if as illegal, indifferent of amounts of “gifts” or “presents”.

As in the last years, it is still the general impression that many high-level corruption case files were created for political reasons and had the purpose to eliminate key politicians from the public service at important moments, such as right before elections or in key political moments, with the sole purpose to “take-out” a person from the elections race or from the political life. Another challenge is the means in which such corruption cases are ascertained, respectively what evidence is gathered and in which way. As the secret services can no longer be part of the criminal investigation phase (after a highly impacting decision by the Constitutional Court in 2019), the prosecutors from DNA have had serious difficulties in performing investigation on corruption. Whistle-blowers may become an important ally of prosecutors, if the relevant legislation is enacted.

The businesses face several difficult challenges when they are investigated by the authorities for, possibly, perpetrating bribery or corruption issues. Firstly, when such investigation is started, the criminal investigation authorities institute seizure measures and sometimes block all the bank accounts of the legal entities. When these things happen, the activity of a business can be totally interrupted. Another aspect is that in some cases, the business partners of the respective company which is investigated stop all contracts/contact with the company, especially if investigations are made public by authorities. Another issue of the legal entity is to try to determine if the criminal liability of the legal entity would also be triggered along with that of the person who perpetrated the crime. Or, if the legal entity is the one who is accused of perpetrating such crimes, there will be discussions in regard to the persons who benefited from these crimes and if such persons are amongst the persons in the management of the company. Furthermore, there is no provision in the law or guidelines as to how a company can be definitively sure it can eliminate in full the risk of being accused of such practices, since however strong their internal regulations are, the subjective perception of law enforcement can still lead to their accusation.

As mentioned before, due to the global pandemic context but also being situated in the close vicinity of a war zone, the most significant corruption-related investigations will most likely target the public procurement procedures and other public contracts that were rumoured lately in the media to have been illegally negotiated and signed between the involved parties (in the context of suspension of public tenders and replacement with direct negotiations up to March 2022). Moreover, the economic recession that appears to be inherent might lead to acts of corruption in order to try to save or develop certain businesses, resulting in a necessary attention towards the prevention measures both by the authorities and the companies.

One of the first and foremost measure would be strengthening prevention by placing a real and effective focus on education, so that there is no misrepresentation of the actual problem that corruption represents. Moreover, a clearer and more precise legislation, which to clearly distinguish between lobby activities (that are not regulated) and abuse in office or traffic peddling crimes would also ensure a modernisation of the Romanian society, following the US (and others’) example, as well as establishing some guidelines for internal codes of conduct which could be used as defences in cases of corporate coruption. On the same route, the Romanian legislator should renounce to the soviet-inspired general incrimination of abuse in office and adopt a modern, more precise incrimination, equivalent to the abuse of power, which to establish a threshold or clearer lines to guide licit conducts. Also the management of legal entities should try to be more attentive to the actions or inactions of all the employees and to try to better explain all the legal repercussions which could occur in the case when an employee perpetrates crimes of bribery or corruption. More explicit trainings should be performed at the level of the legal entities in order for all the employees to better understand the risks of illegal actions (personally for them, but also for the company).