Combating corruption in judiciary in Romania

Anca JURMAChief Prosecutor of the International Cooperation Unit

National Anti-Corruption Directorate – DNAajurma@pna.ro

And C DNA is a special and specialized prosecution structure

within the Romanian Prosecution Service, having the competence of investigating and prosecution high and medium level corruption cases.

It was set up in 2002 having as a model of inspiration the Fiscalia Anticorruption of Spain.

It’s special feature is that it is a complex structure. The prosecutors are assisted in their activity by police officers and specialists in various fields (financial, accounting, IT etc.), all employed by DNA. At present we have 128 prosecutors, 166 police officers and 48 specialists.

DNA has nationwide jurisdiction. It is composed of a central structure in Bucharest and 15 territorial services.

DNA – Short History

- high and medium level corruption offences - Bribery offences – if the bribe exceeds 10,000 €. Offences assimilated to corruption – if the caused damage exceeds 200,000 €. Bribery offences and offences assimilated to

corruption – when committed by persons with certain high level public positions (ex. MP’s, ministers, magistrates (judges and prosecutors), prefects, mayors, members of the Local and County Councils, army Generals, police officers, directors of public institutions etc.)

Offences against the financial interests of the EU – regardless of the value of the damage.

Serious economic offences – (i.e. tax evasion, abuse of office, fraud and smuggling) if the caused damage exceeds 1,000,000 €.

DNA’s JURISDICTION

PRACTICAL EXPERIENCE2006 - 2011

o In this period, DNA focused its main efforts on high profile and complex cases.

o Over 4000 defendants were sent to trial (50% of them had leading and control responsibilities or other important public positions).

o The courts ruled final conviction decisions against approximately 950 defendants in DNA cases and conviction decisions that are not yet final for 881 defendants.

o The conviction rate is about 89-90%.

Data on corruption cases regarding judges and prosecutors In the last 6 years:

- DNA indicted 18 judges and 26 prosecutors

for corruption offences. - 10 judges and 13 prosecutors have been already convicted (final conviction decisions)

In 2011: - DNA indicted 2 judges and 3 prosecutors- 2 judges and 2 prosecutors received final

conviction decisions.- Penalties received: from 4 years and 6

months with detention to 4 years with suspension of the penalty.

Case ”Bribery at the Court of Appeal”

A case regarding a judge who received a bribe in order to rule a civil case in a

manner favorable to the briber.

GB was a judge at the Court of Appeal I, Civil Section.

In November 2011, a civil case of separation of property between two former spouses has been adjudicated in favor of the former wife.

The former husband, PL, contacted the judge GB and asked for her help to get a favorable solution in the appeal

Judge GB agreed to help PL and promise to make sure that the case would come under her jurisdiction.

FACTS

Judge GB requested 4000 Euro (amount raised later on to 8000 Euro) claiming that, first, she has to pay her colleagues from the panel.

Defendant PL paid 4000 Euro in March 2011 and promised to give the rest when he’ll sell the apartment.

End of March 2010, the decision was given in the favor of PL.

November 2010, PL visited the judge GB and paid her the rest of the money as agreed.

The judge was caught red handed right after she received the money.

Immunity rules:- Judges and prosecutors don’t enjoy immunity from investigation, prosecution and trial. - The immunity covers only the search measures and the pretrial detention of the judges and prosecutors. These measures are subject to the authorization of the Supreme Council of Magistracy.

Interception and use of recordings of communications:- The prosecutor requests the authorization of the judge for intercepting and recording communications- Phone communications – the Technical Service of DNA with the support of the Romanian Intelligence Service- Environmental communications – the Technical Service of DNA- Recordings made by the parties of a trial or by other private persons can be used as evidence if they record their own communications or conversations they had with third parties.

RELEVANT RULES OF PROCEDURE

October 2010, DNA was notified by the complaint of the former wife of the defendant PL, Mrs. IV.

The denouncer IV brought as support of her allegation the recording, made with her phone, of a conversation between her and a family friend.

Content: - the friend tells IV that her husband made an arrangement with the judge GB, so that GB gets assigned to rule the case in appeal and give him a favorable decision. He also told her that the amount of the bribe requested by the judge was 10.000 Euro, but PL paid so far only 4.000.

INVESTIGATION

The prosecutor obtained the authorization of the competent judge for the audio - video recordings of the conversations held between the persons involved in that case.

In the conversations, the defendant PL talks about the judge GB naming her “The Grandma”.

Fragment:“Friend: What debts do you have now?”

“PL: Debts? Well, the bank, you guys and… the old lady, the judge. I still owe her around 4.000 Euro when I’ll sell the apartment.”

“PL: Now, I’m thinking about something… The Grandma said that I have to give another 1.000 Euro for one of these ladies (judges in the panel) and I didn’t go to give the money because I simply don’t have that money. And now… I told her “Lady, I really don’t have

that money! She said “You’ll find a way.”

The defendant PL agreed to cooperate with the prosecutors. He accepted to be wired when he visited the judge GB in order to give her the rest of money they agreed.

The defendant GB proposed PL to meet at her house next day “when it’s dark”.

The conversation between the two defendants during that meeting are also relevant. The judge kept complaining to PL about an inquiry made by the inspectors of the Superior Council of Magistracy as a consequence of an intimation forwarded by the denouncer IV against her in relation with the same case.

Fragment:

“PL”: I came to pay my debt to you… 3.000 Euro is OK?”

“GB: “It’s OK, I don’t even want to discuss further. It’s OK. […] I’m so afraid!” “Those from Bucharest (judicial inspectors) came here and they asked us a lot of questions about your file, they turned us upside down and investigated us, you know…” “I’m sick and tired! […] You know that I usually don’t do this kind of things… but now…” “[…] I’ve been on pins and needles the whole summer. Thanks God you were smart enough not to contact me all this period.”

The investigators intervened right after GB received the money.

She had to admit that she received an envelope from the defendant PL, but she claimed that she didn’t

know what was in it.

 

The defendant GB was put under pretrial detention. In order to take such measure, the prosecutors asked the authorization of the SCM, as required by the law.

Defendant GB was charged and indicted for bribe taking and traffic of influence.

Defendant PL was charged and indicted for bribe giving and buying of influence

For the defendant PL, the prosecutors asked the court to apply the provisions of art. 19 of the Gov’t Ordinance 43/2002 regarding DNA and to reduce his penalty with a half because he cooperated with the authorities.

CHARGES AND LEGAL MEASURES

THE COMPETENT COURT

Since the court competent to rule this case would have been, according to the territorial jurisdiction rules, the court of appeal in which the defendant GB was a judge (and former President) and there was a risk that the impartiality of the court would be questioned, the prosecutor asked the High Court of Cassation and Justice to designate another court of the same rank.

 

oThe trial in first instance took 5 months.oGB’s defense was that she was innocent, she

didn’t asked or received any money and she didn’t promise to influence her colleagues nor to give a favorable decision in PL’s case.

oHer explanations in relation with the money received from PL were not accepted: she claimed she didn’t know what was in the envelope, but she admitted that she opened it and put the money in a drawer.

oPL’s defense was to use the new introduced procedure of admission of guilt which would

grant him the reduction with a third of the penalty.

TRIAL

GB convicted: 4 years and 6 months imprisonment. 3 years the interdiction of some rights,

including the right “to hold a position or to pursue a profession or an activity of the same nature as to the one used by the defendant to commit the offence”.

PL convicted: 1 year and 6 months imprisonment with the

suspension of the penalty, on probation for a term of 3 years and 6 months.

the court applied a lower penalty taking into consideration the procedure of admission of guilt and mitigating circumstances.

The sums given as bribe have been confiscated. The first instance court decision has been maintained

in appeal and it remained final.

COURT DECISION

o Before the end of the trial, the defendant GB tried to benefit of the right to early retirement and special pension, speculating an interpretation of the law on judiciary.

o The law states that the special pension can be awarded only to the magistrates who ended their function as magistrates for any other reason than a sanction.

o However, once the magistrate is charged with an offence, he/she is suspended from office. So, the question was (now, the law is clarified), can a suspended judge/prosecutor ask for the special pension? She asked. Her request was rejected.

OTHER CONSEQUENCES

Thank you!