This country-specific Q&A provides an overview to bribery and corruption laws and regulations that may occur in Romania.
This Q&A is part of the global guide to Bribery & Corruption. For a full list of jurisdictional Q&As visit http://www.inhouselawyer.co.uk/practice-areas/bribery-and-corruption-second-edition/
What is the legal framework (legislation/regulations) governing bribery and corruption in your jurisdiction?
The main normative acts that govern bribery and corruption related crimes in Romania are the Criminal Code and the Law no. 78/2000 on preventing, discovering and sanctioning of corruption acts.
Which authorities have jurisdiction to investigate and prosecute bribery in your jurisdiction?
Generally, crimes related to bribery and corruption are investigated and prosecuted by the prosecutor, as per the Criminal Procedure Code. There are, however, several specialised investigation authorities which have jurisdiction based on material grounds, respectively on personal grounds. For example, the National Anticorruption Directorate (NAD) was set up as a specialised department within the Prosecutor’s Office attached to the High Court of Cassation and Justice (HCCJ), with jurisdiction over the acts sanctioned by the Law no. 78/2000.
Altogether, within the Prosecutor’s Office attached to the HCCJ, starting with October 2018, there was organised a special Division for investigating the crimes within the judicial system, which has jurisdiction over the crimes perpetrated by judges, prosecutors or members of the Supreme Magistracy Council, irrespective of their subject matter, of corruption or not.
Within the Ministry of Internal Affairs there is also a specialised division, which has jurisdiction over the acts sanctioned by the Law no. 78/2000, when perpetrated by the Ministry’s personnel.
How is bribery defined?
In the national regulation a distinction is made between active corruption and passive corruption as an expression of the obligation assumed by Romania by adopting the Council of Europe Criminal Convention on Corruption (27 January 1999, ratified by Law No 27 of 16 January 2002), to ensure punishment of both forms.
In this respect, the passive bribery is defined by Art. 289 of the Criminal Code 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, speeding up 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.’
On the other hand, the active bribery is defined as “(1) The promise, the giving or the offering of money or other benefits in the conditions provided under Article 289 (i.e. directly or indirectly, for themselves or on behalf of others, offers or gives money or other undue benefits or promises money or benefits, in exchange for performing, not performing, speeding up 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)”
Does the law distinguish between bribery of a public official and bribery of private persons? If so, how is ‘public official’ defined? Are there different definitions for bribery of a public official and bribery of a private person?
The law makes a distinction between bribery of a public official and bribery of private persons, considering the latter less severe. Thus, the definition of a public official provided by the Criminal Code establishes that: ‘(1) For the purposes of criminal law, public servant is the person who, on a permanent or temporary basis, with or without remuneration:
a) shall exercise the duties and responsibilities, set under the law, to implement the prerogatives of the legislative, executive or judiciary branches;
b) shall exercise a function of public dignity or a public office irrespective of its nature;
c) shall exercise, alone or jointly with other persons, within a public utility company, or another economic operator or a legal entity owned by the state alone or whose majority shareholder the state is, responsibilities needed to carry out the activity of the entity.
(2) At the same time, for the purposes of criminal law, the following shall be deemed a public servant: the person who supplies a public-interest service, which they have been vested with by the public authorities or who shall be subject to the latter’s control or supervision with respect to carrying out such public service.’
On the other hand, the stipulations regarding bribery shall apply accordingly to acts committed by or in connection with the persons who carry out, on a permanent or on a temporary basis, with or without a remuneration, a duty irrespective of its nature in the service of a natural person of those provided under Article 175 par. (2) – ‘the person who supplies a public-interest service, which they have been vested with by the public authorities or who shall be subject to the latter’s control or supervision with respect to carrying out such public service’ – or within any legal entity.
Thus, bribery is sanctioned with respect to both public officials and private persons. In the case of private persons, however, the penalty is reduced by a third.
What are the civil consequences of bribery in your jurisdiction?
With respect to the civil consequences of bribery, there are several points that should be addressed, as follows: (i) the money, valuables or any other benefits representing the bribe; (ii) the prejudice caused by perpetrating the crime.
The Criminal Code stipulates explicitly that the money, valuables or any other benefits received, given or offered as a bribe shall be subject to seizure, and when such can no longer be located, the forfeiture of the equivalent shall be ordered. The same legal regime applies to the money, valuables or any other assets received, given or supplied with respect to influence peddling or influence buying.
In the matter of the prejudice caused by bribery, the general stipulations of the law are applicable, which state that any person that suffered a prejudice as a result of an illicit act has the right to obtain reparation. Thus, the person found guilty of committing a corruption related crime shall repair the prejudice caused by its actions, in accordance to the general provisions of Tort law.
What are the criminal consequences of bribery in your jurisdiction?
Bribery is sanctioned with imprisonment, the special limits of the penalty varying in accordance to the specific crime committed and the quality of the perpetrator. For instance, the Criminal Code establishes that taking a bribe shall be punishable by no less that 3 and no more than 10 years of imprisonment, while giving a bribe shall be punishable by no less that 2 and no more than 7 years of imprisonment. For certain public officials, such as judges and prosecutors, the special limits of the punishment stipulated in the Criminal Code shall increase by one third.
There are also ancillary and additional penalties that are applied, such as a ban on the exercise of one or several of the following rights:
a) right to be elected to the ranks of public authorities or any other public office;
b) right to take a position that involves exercise of State authority;
c) the right to take the position, exercise the profession or perform the activity they used in order to commit the offense;
d) the right to take a managerial position with a public legal entity;
The penalty consisting in 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 is explicitly mentioned as a penalty for taking a bribe. Therefore, while generally the judge decides whether to apply any of the ancillary and additional penalties, in case the defendant is found guilty for taking a bribe, the judge must also apply this penalty.
Does the law place any restrictions on hospitality, travel and entertainment expenses? Are there specific regulations restricting such expenses for foreign public officials?
According to the national regulation, there is no legal definition of the undue benefits, therefore their analysis and appreciation will be carried out by the court, based on the documents of the case.
Considering that according to the national law it is forbidden to solicit or receive undue benefits or accepts a promise of such benefits, in exchange for performing, not performing, speeding up 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, the law not embodying a legal definition of the undue, hospitality, travel and entertainment expenses may be implicitly restricted by the law.
Thus, in the interpretation of the law, hospitality, travel and entertainment expenses may represent a bribe in case they are offered to a public official or private person, considering that all the other incrimination conditions are met.
Are political contributions regulated?
Political contributions are extensively regulated by Law no. 334/2006 on financing the activity of political parties and the electoral campaigns, which provides specific conditions regarding the nature of the finances of a political party, the amount of the contributions, the manner in which the political contributions may be effected and it also imposes several obligations in order to ensure the transparency of the parties’ finances.
At the same time, the Romanian lawmaker opted for the incrimination of a deed related to the financing of political parties, by Art. 13 of the Law no. 78/2000, which provides that “The act of a person performing a leading position in a party, in a trade union or patronage or in a legal person without patrimonial purpose to use his influence or authority for the purpose of obtaining for himself or for another money, goods or other undeserved goods.”
Are facilitation payments regulated? If not, what is the general approach to such payments?
Facilitation payments are expressly incriminated, corresponding with the hypothesis of speeding up the performance of an action which falls under purview of their professional duties from the definition of the bribe.
However, with respect to the person who supplies a public-interest service, which they have been vested with by the public authorities or who shall be subject to the latter’s control or supervision with respect to carrying out such public service (for instance, public notaries), the action does not constitute a crime when it is committed in relation to speeding up the performance of an action which falls under purview of their professional duties.
Are there any defences available?
On a general basis, the national regulation does not provide a remedy applicable in all the situations regarding the facilitation of payments.
However, defences may be focused on proving that: (i) the action in question does not exist; (ii) the action is not covered by the criminal law or was not committed with the guilt required by law; (iii) there is no evidence that a person committed the offense; (iv) there is a justifying or non-imputability cause; (v) the statute of limitations is applicable.
Mention should be made that the defences may be highly varied, based on the factual circumstances of the case and the complexity of the case, comprising one or more elements of the above.
Are compliance programs a mitigating factor to reduce/eliminate liability for bribery offences in your jurisdiction? Please identify any guidance indicating what features a compliance program should have in order to provide an effective defence/mitigation.
Compliance programs are not regulated by the law, nor are they even defined by it. Therefore, there is no official guidance indicating their features.
In the national framework, compliance programs alone cannot eliminate the liability for bribery offences and, with respect to natural persons, they cannot even constitute a mitigating circumstance.
However, with respect to corporate entities, it may represent judicial mitigating circumstances. Judicial mitigating circumstances are not mandatory by law, being at the sole appreciation of the judge, who may decide, based on the circumstances of the case, whether a compliance program can be considered a mitigating circumstance or not.
In this matter, the judicial practice is not sufficiently developed in order to identify generally applicable criteria for establishing whether a compliance program could provide an effective mitigating circumstance.
Who may be held liable for bribery? Only individuals, or also corporate entities?
While the criminal liability of the legal entities has been regulated since 2006, the jurisprudence and legal doctrine in this matter are not yet unitary. In order to establish whether a legal entity may be held liable for bribery, several distinctions should be made, as follows.
Firstly, the Criminal Code establishes that not all legal entities may be held criminally liable. Thus, public institutions shall not be held criminally liable for offenses committed in the performance of activities that cannot be the object of the private domain.
Secondly, in the matter of offences regarding taking a bribe, the predominant thesis states that it is very difficult to hold the legal entities liable for passive bribery, considering the fact that they are neither a public official, nor a private individual.
Finally, in the matter of active bribery, the predominant thesis states that legal entities may be held liable for giving a bribe, and, in practice, there are several conviction decisions regarding legal entities.
Has the government published any guidance advising how to comply with anti-corruption and bribery laws in your jurisdiction? If so, what are the elements of an effective corporate compliance program?
The government did not publish any official guidance advising how to comply with anti-corruption and bribery laws and, as long as such a guide would not be included or declared mandatory by a normative act, it could not have any (or much) consequences over the criminal liability.
There exist, however, some guides internally adopted either by public authorities or by non-governmental organisations, which have a preventive role and an informative effect. In this respect, mention should be made that any legal entity is free to draft its own guides or internal regulations, as long as it is in accordance with the law. The effects of the aforementioned guides are limited to the organisation that has adopted them and aims at both the awareness of the phenomenon within the organization as well as the possibilities of prevention or means of counteraction.
From the perspective of criminal liability of the legal entities, the internal adoption of anticorruption guidelines/procedures can be considered as a circumstantial element that can remove the will of the organization from tolerance of corruption. Therefore, more and more organisations tend to implement such policies in order to deliver an unequivocally statement regarding their zero tolerance approach on corruption.
Does the law provide protection to whistle-blowers?
As a result of the anti-corruption policy conducted by the Romanian state, the applicable legislation in this field has been modified, including in terms of improving the framework for measures to protect the whistle blowers.
Thus, with the entry into force of the new Criminal Procedure Code, the threatened witness statute was regulated, in favour of which one or more protection measures could be applied, such as: a) supervision and guarding of the witness's dwelling or provision of temporary housing; b) to accompany and ensure the protection of the witness or his / her family members during the trips; c) protection of identity data by giving a pseudonym with which the witness will sign his statement; d) hearing the witness without being present, by means of the audio-visual means of transmission, with the distorted voice and image when the other measures are not sufficient.
These measures may be ordered when there is a reasonable suspicion that the witness's life, integrity, freedom, property or professional activity or a member of his family may be endangered by the data he or she provides to the judicial authorities or of its statements.
How common are government authority investigations into allegations of bribery?
Considering the high number of cases investigating corruption offenses, as evidenced by the information given to the DNA activity reports, the prosecutor's office registered in 2018 a number of approximately 10,000 cases under investigation, of which just over a third (3,547) were resolved.
This aspect can be appreciated by a factor regarding the increased interest of the judicial bodies in combating the anti-corruption phenomenon, but also an element that attests to a high degree of familiarity and awareness of the amplitude of the phenomenon of corruption at national level.
It can also be envisaged, from this perspective, that in relation to the rest of the corruption offenses, the passive bribery has a share under 3% of the total of the crimes investigated.
What are the recent trends in investigations and enforcement in your jurisdiction?
According to the information made available by the National Anticorruption Directorate regarding the cases in which corruption offenses are investigated, there is now a decrease in the number of public communications through which public opinion was brought to the attention of such cases.
Also, according to the 2018 DNA Report published on the Internet , it can be noticed that between 2015-2018 the number of notifications from persons and institutions has decreased from 3.305 to 1.513, and the number of files to be solved has decreased from 12.353 in 2016 to 9.191 in 2018.
In this context, it can also be mentioned that a series of Decisions of the Constitutional Court of Romania recently adopted and published in the Official Gazette, which found elements of unconstitutionality of the relevant legal provisions from the perspective of investigations in the causes of corruption (a relevant example in this respect being Decision No. 51/2016, where the CCR established that SRI bodies cannot carry out criminal / technical surveillance activities in the criminal proceeding), could have an impact on the DNA activity, which might have led to diminishing the volume of activity of the main investigative judicial body in the material facts of corruption.
Is there a process of judicial review for challenging government authority action and decisions?
In the Romanian procedural law system, any interested person can file a complaint against the acts of the prosecutor which have caused their harm, such a complaint being addressed to the hierarchically superior prosecutor.
In addition, where the acts or decisions of investigative bodies are such as to prejudice fundamental rights, such as the right to freedom or the right to property, the legislator's intention was to provide increased protection for the persons concerned by these measures, by establishing a legal framework to allow for judicial review of interference in the scope of fundamental rights (i.e. on preventive measures, precautionary measures, etc.).
Are there any planned developments or reforms of bribery and anti-corruption laws in your jurisdiction?
At present, in the legislative procedure carried out in the Parliament of Romania there is a law project which concerns, inter alia, the modification of the Law no. 78/2000 on the prevention, detection and sanctioning of corruption acts. This law project was adopted by the Senate on 17.04.2019 and provides the abolishment of the provisions of Art. 132 regarding the incrimination of the aggravated form of the crime of abuse of power, when the clerk sought to obtain an undue advantage for himself or for another.
To which international anti-corruption conventions is your country party?
Romania has adhered to a number of relevant international instruments in the field of preventing and combating corruption, as follows: (i) The Criminal Convention on Corruption, adopted in Strasbourg on 27 January 1999, ratified through Law no. 27/2002; (ii) The Civil Convention on Corruption, adopted in Strasbourg on 4 November 1999, ratified through Law no.147 / 2002; and (iii) the United Nations Convention Against Corruption, adopted in New York on October 31, 2003, ratified through Law no. 365/2004.
Do you have a concept of legal privilege in your jurisdiction which applies to lawyer-led investigations? If so, please provide details on the extent of that protection.
The national legislation knows the regulation of the lawyer's secret professional concept, relevant to this being the provisions of Law no. 51/1995 and Statute of the Lawyer profession.
According to these regulations, the subject of professional secrecy may be: consultations given or directed to the client, correspondence between the lawyer and his client, professional correspondence between a lawyer and lawyers, the notes made during the professional interview conducted by the lawyer with his client for the analysis of the facts or a judicial file or documents of legal relevance, the material support of the evidence provided to the lawyer in the interest of preparing and performing the defense, the testimonies received by the lawyer in the exercise of his profession, the names of the clients, the lawyer's professional agenda, the financial documents and the banking operations related to the professional benefits, customer relationship and, in general, any aspect of or related to the exercise of the profession.
In order to protect the professional secrecy of the lawyer, the law establishes guarantees for the right to refuse to testify, the inviolability of the headquarters, the particular regime of searches and the removal of documents from the attorney's office.
In order to reconcile the lawyer's privilege with the protection of professional confidentiality, the New Criminal Procedure Code provides for some exceptions to the general rules on the attorney's ability to witness by exempting him from the duty to give witness statements about those facts or circumstances whose secrecy or confidentiality may be opposed by law to the judiciary.
How much importance does your government place on tackling bribery and corruption? How do you think your jurisdiction’s approach to anti-bribery and corruption compares on an international scale?
In recent years, the competent authorities in the fight against corruption in Romania have investigated and sent to court individuals from different sectors of activity, the quality of these persons being relevant for highlighting the increased interest of the authorities in combating the phenomenon of corruption on a national scale.
Thus, it can be seen that investigations conducted by DNA during 2018 concerned: (i) seven dignitaries (one minister, two parliamentarians and four secretary of state); (ii) 25 mayors and deputy mayors; (iii) four presidents of county councils; (iv) seven county or local councillors; (v) 17 senior management positions within local authorities; (vi) three magistrates; (vii) seven lawyers; (viii) 19 police officers; (ix) 18 persons with leading positions in public institutions; (x) seven directors of companies / national companies; (xii) seven teachers and principals - in the field of education; (xiii) six hospital managers and doctors - in the health field.
On the other hand, the high interest in investigating this kind of offenses and the criminal responsibility of the guilty persons is revealed by the existence in the DNA of some priority investigation sectors, as evidenced by the DNA Activity Report for 2018, respectively: (i) Corruption in the health system; (ii) Corruption in the field of forestry and illegal logging; (iii) corruption in public procurement; (iv) Corruption in the provision and use of public subsidies; (v) Offenses against the financial interests of the European Union.
Last but not least, the increased interest of the authorities in terms of corruption offenses is also evidenced to an external factor, dimensioned by the indicators provided in the MCV reports on the recommendations of the European Commission addresses to Romania from the perspective of continuing the anti-corruption fight.
Generally how serious are organisations in your country about preventing bribery and corruption?
Currently, in Romania there is an increasingly common practice regarding the establishment within the organizations of internal anti-corruption policies which, on one hand, aim at preventing the perpetration of illicit acts by the members of the organization and, on the other hand, tend to limit the criminal liability of the organization in the hypothesis that corruption acts were committed by its members.
What are the biggest challenges enforcement agencies/regulators face when investigating and prosecuting cases of bribery and corruption in your jurisdiction?
One of the main challenges faced by the authorities responsible for the investigation of corruption has been in the latest period the excessive publicity of some of the causes, which represent a form of pressure exerted upon them, quite often being accredited in the media, to this end, different politically affiliated persons.
What do you consider will be the most significant corruption-related challenges posed to businesses in your jurisdiction over the next 18 months?
Against the backdrop of a growing practice, but insufficiently explored as per the legal doctrine and jurisprudence to date on criminal liability of the legal person, an important challenge in the business sector in the near future might be to identify the mechanisms that can lead to streamlining internal anti-corruption procedures / policies and maximizing the effects sought in this way.
From this perspective, will be able to maintain and strengthen the positions held, the organizations that will opt for the intensification of the internal auditing activities in order to strengthen the preventive anti-corruption practices, to identify the potential vulnerabilities within the organization, as well as the situations that constitute violations of the legal provisions in corruption issues, which can destabilize the current activity of the company.
How would you improve the legal framework and process for preventing, investigating and prosecuting cases of bribery and corruption?
An improvement of the legal framework in the anti-corruption field could aim to increase the clarity and predictability of norms that sanction corrupt practices, considering that in present the law provides a wide range of interpretation and application, likely to create a degree of uncertainty regarding the qualification of some actions/inactions which may fall under the rules of corruption.
From this perspective, one may take into account the deficiencies found by the Constitutional Court of Romania regarding the quality of the law, many exceptions of unconstitutionality being admitted from the point of view of the meaning of legal norms in criminal matters.