Nations in Transit - Romania (2005)

Capital: Bucharest
Population: 21,700,000
Status: Free
PPP: $1,870
Private Sector as % of GNI: na
Life Expectancy: 71
Religious Groups: Eastern Orthodox [including all sub-denominations] (87 percent), Protestant (6.8 percent), Catholic (5.6 percent), other (0.6 percent)
Ethnic Groups: Romanian (90 percent), Hungarian (7 percent), Roma (2 percent), other (1 percent)

Executive Summary

Since the fall of Nicolae Ceausescu in 1989, Romania has experienced political unrest and continuous struggle between old and new elites. Nevertheless, democratization has progressed. Independent media and civil society gained ground, and elections qualified as free and fair in 1992,1996, and 2000. In 2003, Romania revised its 1991 Constitution and became a member of NATO. The European Commission formally acknowledged in 1997 that Romania had satisfied the Copenhagen political criteria and in 1999 invited the country to join the European Union (EU). Romania expects to sign the accession treaty to the EU in 2005 and become a full member in 2007. The EU introduced a safeguard clause allowing a one-year delay to the accession date if certain conditions are not fulfilled by January 1,2007. The conditions refer mostly to reforms having to do with the judiciary, corruption, and economic competition. The former Communists have ruled 11 out of the first 15 years of transition and maintain old networks of influence and power. Their retention of strong positions in politics, press, and academia is seen as an enduring legacy of the Ceausescu era.

Strained by its swift move toward EU accession, Romania throughout 2004 continued to display what has become the main feature of Romanian political society a gap between the "legal country" of formal regulations and the reality of actual conditions in Romania, which at times seems to be increasing rather than decreasing. Under pressure from Europe, some formal legal advances were made in 2004, but implementation lags owing to a lack of political will. While Romania is considered to have been in compliance since 2000 with the so-called Copenhagen political criteria of the EU, new concerns about media freedoms and the independence of the judiciary arose in 2004. Such fears, although shared by European members of Parliament and international media watchdogs, have been dismissed as unfounded by some who have depicted Romania as a model success story and the largest economic growth country in the region.

These achievements are real, as are other signs of development and normal behavior from the civil society. However, there is evidence for the first time that direct intervention from political leaders, not just institutional underdevelopment, is to blame for the poor state of the rule of law in Romania. Just 48 hours before the first round of legislative elections in 2004, a series of verbatim transcripts attributed to ruling party meetings were published and brought fresh evidence that Romania's former Communists have not become less authoritarian while becoming pro-Europe. Following elections in fall 2004, the former opposition came to power and a new president replaced Ion Iliescu, although the difference between the electoral tallies was tight.

National Democratic Governance. Romania has a new government and president following legislative and presidential elections held at the end of 2004, consisting in a coalition of the former opposition with the Hungarian Democratic Union (HDU). The government practice of legislating through emergency ordinances continued, despite limitations set in the 2003 revised Constitution. To defend this practice, the government claimed with some justification that the Parliament is too slow to meet the deadlines for legislation to be passed under European integration directives. However, because ordinances end up being submitted for parliamentary approval, this practice does not impede the legislature's balance and check on the executive. The Law on Decisional Transparency was largely not implemented, and most of the legislation was passed without sufficient consultation with civil society. Negotiations with the EU were wrapped up at the end of 2004, but the conditions of entry agreed upon between the government (then dominated by the Social-Democratic Party [SDP]) and the EU remained for the most part unknown to the media and larger public. Romania's new national democratic governance rating is set at 3.50 as voters proved on the last elections that they have the power to hold politicians accountable; however, it remains unlikely that a corrupt or ineffective officeholder can be unseated by any structure of horizontal accountability (such as the courts, anticorruption agencies, or disciplinary committees of the Parliament) between elections.

Electoral Process. Romania held local, legislative, and presidential elections in 2004. Local elections were free and fair. General elections followed a disputed electoral campaign with pro-government electronic media bias. The ballot on November 28,2004, saw many irregularities and illegal multiple voting in some counties. Since elections produced an unprecedented phenomenon for Romania a concentration of votes for the two alliances (former Communist and anti-Communist) separated by just a few votes illegal multiple voting may have played an important role in influencing the final results for the parliamentary elections. Following the scandal surrounding the November 28 elections, the second round of presidential elections was better organized and was won by the challenger, Traian Basescu, mayor of Bucharest. Basescu then managed to form a coalition based on parties that supported him, sending the former government party to the opposition ranks. Despite the scandal, the Romanian government and civil society managed in the second round to cooperate to solve problems, and the subsequent transfer of power was smooth. Romania's electoral process score remains 2.75 owing to the failure of law-and-order agencies to follow up on investigating allegations of fraud.

Civil Society. In 2004, the most visible advances in Romania were recorded by the civil society sector. Transcripts of former SDP-dominated government meetings leaked to the press showed that the government viewed civil society as a menace and that a plan was drawn by the SDP to create a counter civil society, with indications given to party activists to set up parallel nongovernmental organizations (NGOs) to copy and combat those with the highest profiles. In this context, the Romanian NGOs continued to play an important role in the democratization of Romania; however, they more often have found themselves fighting the government than cooperating with it. Not only has civil society become a more prominent and respected public actor, but in many fields, from social work to environment, it has come to complement or supplant the state. Legislation is anticipated for early 2005 that will improve the legal framework for NGOs. Romania's civil society rating improves from 2.50 to 2.25 owing to both its boost in activity and the increasing reliance of the broader society on NGOs, especially in matters of governance and accountability of the administration.

Independent Media. The Romanian Convent of Media Organizations adopted in July 2004 the first statute of the journalist and code of press conduct. Romanian legislation on free access to public information, adopted in 2001, continued to be an important mechanism for promoting public accountability. The print press, and even the local media, often very weak financially and largely shy in criticizing the government, played a substantial part in ensuring that citizens received relevant and balanced information to facilitate their participation in the November 2004 elections. The performance of Romania's radio and TV stations was uneven, however, as many of them are captured by vested interests. The year was plagued by scandals surrounding various media outlets, and evidence was published for the first time that the former government had schemed to control the media. Romania's independent media rating decreases slightly from 3.75 to 4.00 because of electronic media compliance to political pressure during elections and the absence of significant changes otherwise in the media environment.

Local Democratic Governance. The revision of the Constitution in 2003 was supposed to clarify the legal framework of local government by specifying that directly elected local authorities are not subordinate to the centrally appointed prefects. It was followed by legislation on decentralization and on the prefect institution, establishing the Law of the Corps of Prefects, in July 2004. In practice, however, prefects and heads of county councils, the latter being purely honorary positions, have come to enjoy the largest influence at the county level. Nevertheless, local elections operate well as vertical accountability mechanisms, and several notoriously corrupt mayors lost their offices in June 2004. Local government is the most trusted tier of governance in Romania. Romania's new rating for local democratic governance is set at 3.00 owing to the solid legal and financial basis of the local government and the proven capacity of the public, notably in urban areas, to unseat ineffective or corrupt local officials.

Judicial Framework and Independence. The Romanian judiciary continues to be in transition, but the essential legislation to improve its performance is scheduled for completion in 2005. Following the 2003 revision of the Constitution in June 2004, the Law on the Superior Council of the Magistracy, the Law on the Organization of the Judiciary, and the Law on Magistrates were adopted and are being implemented. The Superior Council is to assume full responsibility for the recruitment, career development, and sanction of judges and prosecutors. Romania rescinded the prosecutor-general's legislated right to extraordinary appeal, which for most of the transition had served as the primary instrument of government interference in Supreme Court rulings, and adopted a new strategy for the reform of the judiciary beginning in March 2005. Romania's score for judicial framework and independence improves from 4.25 to 4.00.

Corruption. The Romanian government made some efforts to improve the regulatory framework of anticorruption. The first code of conduct for civil servants, passed in 2004, brought some clarification to conflict of interest legislation by specifically defining public interest, personal interest, and the situation of conflict of interest. However, most individuals who enjoy powerful positions continue to be above the law. A civil society coalition that documented corruption of candidates to the Parliament produced a list of more than 100 names, and roughly a quarter were removed from electoral lists after disclosure. The new president vowed to fight corruption, and considerable public support was shown for the civil society's anticorruption campaign. The new government appointed at the end of 2004 gave up immunity for former dignitaries and initiated investigations in a few notorious cases of tax evasion that had been shielded owing to political protection. Both legislative improvements and actions taken by government and civil society justify an improvement in the corruption rating from 4.50 to 4.25.

Outlook for 2005. Romania's change of government is unlikely to impede its pace of European integration. Together with Bulgaria, Romania will sign the accession treaty to the EU in April. This national objective is likely to ease the tensions in the new Parliament, bitterly and narrowly divided between the government coalition and the opposition. Once this national goal is attained, political parties both within and outside the coalition are likely to become more aggressive in pursuing their own interests. The government's fragile majority in the Parliament seems to indicate that some of the reform bills required for European integration may prove challenging to pass. The new president, Traian Basescu, has already invoked the possibility elections in the event the Parliament does not pass his bills. If the prime minister resigns or forces a no-confidence vote, and the Parliament subsequently turns down two nominees in succession for this position, Basescu can constitutionally call for early elections. For now, such elections are desired more by Basescu, who is uncomfortable with a tight majority, than by the opposition, which is afraid it would fare even worse in the next elections than it did in the last ones.

National Governance (Score: 3.50)

As a result of the legislative and presidential elections in late 2004, Romania's new government now consists of a coalition including the Hungarian Democratic Union (HDU) and the former opposition Truth and Justice Alliance. The elections were considered somewhat irregular and the results disputed, but the change of power was smooth and confirmed Romania's overall commitment to democracy. The European Commission kept a very low profile during the campaign and elections, and the irregularities were corrected mostly through the efforts of domestic civil society, helped by attentive and accurate international media coverage.

Romania has changed little since the Constitution was revised in 2003. Following a major reorganization of the government in June 2003, further restructuring took place in March 2004. The chief innovations were the establishment of three ministers of state (effectively deputy prime ministers) responsible for coordinating the work of other ministries and the creation of a new institution, the Chancellery of the Prime Minister. The chancellery has assumed responsibility for departments that had been under the prime minister's direct authority, oversees internationally financed programs (except for those sponsored by the European Union [EU]), and monitors implementation of the EU acquis communautaire, Europe's compulsory body of legislation for new member states.

Minister of Justice Rodica Stanoiu, perceived at home and abroad as a conservative opposing reform, stepped down a departure praised by the European Parliament. However, she merely switched places with the main adviser on security to President Ion Iliescu, Ion Talpes, who became a deputy prime minister in charge of European integration, while Stanoiu took up his position at the executive. Talpes had formerly been head of the Romanian foreign secret service and made headlines for his association with Willem Matser, a NATO official accused of corruption. Talpes allegedly introduced Matser to a local businessman who owed significant back taxes to the state, hoping to forge a business partnership. Subsequently, Matser was sentenced by a court in Belgium on corruption charges, and Talpes ended up in the Romanian government. In July 2004, following the local elections, five ministers were also replaced. One of these, Deputy Transportation Minister Sergiu Sechelariu, had been previously accused of distributing infrastructure funds to mayors favored among Social-Democratic Party (SDP) clientele, most notably the deputy minister's brother, the former mayor of Bacau. It was not clear whether the deputy minister was discharged as the object of a civil society disclosure campaign or because his brother failed once again to secure this important city for the SDP in the local elections. In general, all of these dismissals were presented as resignations, and corruption was never suggested as a possible factor.

European Commission regular reports have frequently observed that the Romanian executive's tendency to legislate through emergency ordinances has reduced the transparency of the legislative process, limited adequate consultation on draft laws, and contributed to legislative instability. The October 2003 constitutional revisions redefined the conditions under which emergency ordinances may be used. However, 58 ordinances were adopted between February and June 2004 (compared with 65 during the same period in 2003). Moreover, a provision has been introduced in the Constitution whereby an emergency ordinance that has been tabled by the government, if not approved by the Parliament within 30 days, is deemed to have been adopted by the first chamber. As this report forecast a year ago, revisions to the Romanian Constitution were bound to remain on paper only.

The excuse that Romanian governments invoke when overriding the legislature is the unusual sluggishness and sloppiness of the Romanian Parliament. The efficiency of the Romanian Parliament did increase somewhat after the Constitution was amended. Now, when legislation is passed by one chamber, it is automatically adopted if the other chamber delays discussing it. But the quality of legislation did not improve under the pressure to legislate faster, though the new measure did help with legislation that is usually not debated, such as the acquis communautaire. On other laws, the Parliament simply faulted. In fall 2004, for instance, the chamber adopted a law requiring accreditation from the Academy of Science for pollsters and research agencies as well as individuals, regardless of academic qualifications undertaking political and social research. The law, promoted by the authoritarian Greater Romania Party (GRP), received negative reactions from both the Senate and the government, and President Iliescu vetoed it at the request of pollsters.

This year marked Romania's first as a NATO member, and as a result, the secret services and military were occupied with the practical steps of new membership and largely avoided public attention. On the contrary, National Council for Screening the Securitate's Archives (CNSAS) the civilian authority in charge of screening the archives of the Securitate (Ceausescu's secret service) was again the object of many disputes in 2004. The CNSAS is politically appointed, and the current council was elected prior to the 2000 elections, when anti-Communists held the majority in the Parliament. In light of the new SDP government, SDP representatives on the CNSAS ceased going to work in 2003 to force their dismissal and thus the election of a new CNSAS body dominated by the political majority. However, the Parliament has not taken serious action to dismiss the current CNSAS, which still has more than a year remaining in its lawful term. The most significant obstacle to CNSAS activity comes not from the Parliament, but from the Romanian Information Service (RIS), the main secret service and direct heir to the Securitate, which is still the de facto owner of the archives owing to a self-serving interpretation of the law.

The RIS often denies information or provides truncated versions. Dissidents receive their files with many unessential details about their lives intact but lacking the surveillance from their years of dissident activity. If information is required on a suspected informant, and that individual has been an officer, the RIS will often inform the CNSAS that the individual was not registered as an informant. In case of doubt or political intervention, a vote is taken. For instance, the leader of the GRP, Vadim Tudor whose Communist-era denunciations of fellow writers were published by the press was cleared. As the vote was split between his legal representatives in the CNSAS and former dissidents, the president of the body, Gheorghe Onisoru, used the chair's right to cast two votes to clear Vadim. The decision drew public outrage, and one former dissident in the CNSAS stepped down in protest.

The parliamentary committee charged with security affairs has proved in every instance to have little authority. No one knows how deep the screening of secret services penetrated in order to prepare the country for NATO membership. In fact, as in previous NATO expansions, the business of cleansing secret services and the Army of former Communists was entrusted largely to Romania itself, with little or no checking from NATO.

Electoral Process (Score: 2.75)

In 2004, Romania held its fifth round of free elections, both local (June) and general (November). The elections were disputed and free, but the electoral campaigns and overall political competition promoted a pro-government bias. The main contenders were the ruling SDP; the Justice and Truth Alliance (DA), which is composed of the opposition Democratic Party (PD) and the National Liberal Party (PNL); the Hungarians' Democratic Union; the Romanian Humanist Party (RHP), associated with the ruling party; and the GRP, a radical populist party. Domestic observers reported only minor irregularities in local elections. The DA won the largest number of votes in Bucharest and nearly all county capitals, but the SDP won most mayoral positions, predominantly in villages and small towns.

The general elections were far more ambiguous. Since they produced an unprecedented concentration of votes for the two main alliances (former Communist and anti-Communist) separated by only a few votes, it is suspected that fraud could have played a decisive role in influencing as much as 3-5 percent of the final results the worst instance of electoral fraud in Romania in the past decade. The Institute for Marketing and Polls (IMAS) published an analysis of election day data showing significant correlations between invalid votes, or supplementary electoral lists, on one side and the vote for the SDP on the other. In other words, districts where outsiders showed up in large numbers to vote despite being registered elsewhere on permanent electoral lists (and therefore registered on supplementary lists at the polls) voted significantly above the national average for the SDP, according to the Web site www.imas.ro.

Domestic watchdog Pro-Democratia filed several complaints with the Central Electoral Bureau (BEC), claiming that voters from SDP strongholds were carried by bus from one voting district to another and also suspected of multiple voting. This was the first election when, instead of a stamp on their old paper IDs, voters received a sticker on their new plastic IDs after the ballot had been cast. However, these stickers could be easily removed, as journalists proved on TV talk shows, thus allowing multiple voting. The Organization for Security and Cooperation in Europe/Office for Democratic Institutions and Human Rights (OSCE/ODIHR) stated that "while the democratic election process appears to be further consolidated in Romania, some procedural concerns have been raised regarding suspension of the use of voter cards. In the context of a closely contested election, this has the potential to affect public confidence." Additionally, the OSCE/ODIHR assessment mission reported that it "did not receive any convincing information that explained the suspension of the use of voter cards for these elections. This, combined with the possibility to vote in any polling station, has the potential to open the door for multiple voting."

Despite civil society's requests, the government refused to amend legislation to allow observers, opposition parties, and civil society to check electoral lists for instances of multiple voting. According to the law, no institution is empowered or compelled to investigate electoral fraud, which must be proven fully by claimants, and no institution has the power to declare elections invalid except county by county. As poor as the electoral law is, its interpretation is even worse. The OSCE recommendation that "any such alleged problems should be fully dealt with through the appropriate administrative and judicial processes" was clearly not followed, as the BEC claimed it does not have legal entitlement to investigate fraud and did not call on prosecutors to do so. After two days of public protest, the BEC granted opposition parties the right to compare supplementary lists with permanent lists and therefore check for multiple voting. But it was too late, as the electoral law requires that final election results be made official 48 hours after receiving results from the districts. By the deadline, the opposition results had not been received, let alone checked, and the election was declared valid with only 10 percent of the electoral lists received.

The 15 most highly reputed nongovernmental organizations (NGOs) in Romania asked on December 2 that the electoral process be suspended until all lists were handed over, multiple voters traced, and the counts of special-list votes repeated. The BEC ignored these requests. Newspapers documented many instances of multiple voting afterward, but a final count has yet to be computed. The new Romanian Parliament has vowed to create a commission to investigate the matter, but even if fraud is proven, the vote cannot be repeated under current electoral law. The prosecutor-general, traditionally appointed by the president, failed to take any meaningful action. Although video taken by the BBC and other journalists showed busloads of multiple voters, an incident that could have been addressed during the election, Prosecutor-General Ilie Botos declared on December 1 that all investigations would be conducted only after elections.

Official figures show that more than 10 percent of those who voted on November 28 did so on supplementary lists, either by claiming they were residents but not included in the permanent list (supplementary list 1) or by claiming to be in transit (supplementary list 2). Official figures show 11 million voters total, out of which 1.2 million were on supplementary lists (500,000 on list 1 and 700,000 on list 2). There was room for considerable confusion, as electoral lists were not updated to exclude about 1.5 million people who had died or immigrated in the last 10 years, according to pollster IMAS. Errors were also noted in the reporting of invalid votes, but the National Commission for Statistics claimed it had requested corrections from districts in ample time. For districts, this often meant that the original records of results had to be retrieved and actually tampered with by presidents of local electoral bureaus in order to correct them. The SDP and the RHP actually led the DA with a little over half a million votes.

Nevertheless, the scandal that broke out showed that Romania has a vigorous print media and civil society. Despite the electronic media's restraint in covering allegations of fraud, the domestic press, international media, and civil society managed to spread the news that the elections had not been fair. The government was compelled to forbid supplementary lists for the second round. Despite enjoying an 8 percent advantage in the first round, Prime Minister Adrian Nastase lost the second round to challenger Traian Basescu, mayor of Bucharest. Basescu was then instrumental in facilitating the SDP's allies, the RHP and the HDU, to form an alliance with the DA, based on the DA's one-seat lead over the SDP (minus the RHP). By the end of 2004, Romania had a new government after a smooth transfer of power.

Table 1. Results of Elections 2004 in Romania

* The rest of the votes up to 100 percent represent minor candidates; these were redistributed to the parties that made the electoral thresholds, according to the Romanian proportional electoral system.

The electoral campaign and overall political competition in Romania were far from fair in 2004. The structural imbalance of the political system, with a great concentration of resources in the hands of successor Communist parties as opposed to the anti-Communist parties, showed more strongly in this electoral year than in previous ones. This means not only material resources, but also the power to adjust legislation and persuade state agencies to rule to the advantage of one group. For instance, President Ion Iliescu is still the most popular former Communist politician, even after three mandates (the Constitution sets a two-term limit); consequently, the electoral legislation was amended in 2004 so that he could run on the electoral list of the SDP "as an independent" (Law 373/2004, Article 5). He even campaigned for the SDP, although Article 84 of the Romanian Constitution states, "During his term of office, the president of Romania may not be a member of any political party, nor may he perform any public or private office." The Romanian Constitutional Court, filled with former SDP ministers, turned a blind eye to this move.

Unlike in neighboring Hungary or Bulgaria, the Romanian Constitutional Court has never issued a significant ruling against the former Communist political establishment, despite strong partisanship in Romanian political life. Also, since Bucharest mayor Traian Basescu the main presidential challenger to SDP candidate Adrian Nastase has a reputation as a vigorous campaigner, the National Audiovisual Council (CNA), the broadcast regulator that is politically appointed according to party percentages in the Parliament, interpreted the electoral law to mean that the two main presidential candidates could not debate face-to-face in the first round of legislative elections. Instead of watching a debate between the two main presidential contenders, each garnering 35-40 percent at the polls, voters had to watch a succession of statements by more than 10 minor candidates. The CNA also heavily fined TV and radio stations that even marginally broke the abundant and often redundant regulations surrounding elections, so no TV producer dared defy them by broadcasting real debates. The head of the CNA, Ralu Filip, cited European legislation to support this unprecedented decision (specifically the directive Television Without Borders), although this legislation has no connection to elections whatsoever.

During the elections, the former Communist bloc SDP had three major advantages over the opposition alliance DA. The first was control over local and regional elites, especially in the least-developed regions. This allowed for the manipulation of local resources, especially in rural areas. Local elites have traditionally backed the SDP because the party's policies have always allowed them to control local resources. For instance, welfare support and various subsidies, access to public resources (such as wood), and vouchers for agriculture works are strictly controlled by local "gatekeeper" elites in Romania's rural areas. About 38 percent of Romanians live on agriculture, and over 80 percent of these are engaged in subsistence farming, the highest level among accession countries. Opposition parties do not maintain offices in these rural areas, while SDP offices are typically hosted in local government premises. Nearly all mayors are SDP affiliated in subsistence farming areas and are often the same people who enjoyed power during the Communist regime. Whole villages vote unanimously for the SDP from fear of losing the community's political links to essential resources.

The SDP's second major advantage over the opposition DA during the electoral period was its dominance over electronic media. This control was expressed through the overall media agenda and, more specifically, through the selection of independent opinion leaders featured on television. The three main TV channels, TVR 1, Antena 1, and ProTV together accounting for about 60 percent of the national audience are all closely aligned to the SDP. TVR 1, the public station, has a politically appointed board controlled by the SDP. However, some journalists dissented during the June 2004 local elections and, after a few days of portraying the election results as a strong SDP victory, began to present a more balanced picture. As a result of this dissent, TVR 1's board received a negative vote in its annual review by the SDP-dominated Media Parliament Committee, which is legal ground to dismiss the station's entire board. As it happened, the vote in the plenum was postponed, and TVR 1 entered the national electoral campaign with this threat hanging over its management. The two private channels also had institutional biases. Antena 1 belongs to the head of the RHP, which ran as a junior electoral partner of the SDP. ProTV, the third network, owes significant taxes to the state. Adrian Sarbu, general manager of ProTV, has ties with Mircea Geoana, the SDP candidate for prime minister. The three channels favored the SDP by avoiding any discussion of corruption (the main electoral topic), refraining from any criticism of the government party, and screening independent opinion makers so that only those favorable to the SDP featured in their programming. Smaller channels were more evenhanded, but their reach is limited to only a few large cities.

The SDP's last major advantage over the DA was its influence over authorities responsible for regulating elections. The SDP used the CNA to maintain a positive image during the electoral period. The SDP also flooded the BEC, made up of judges, with complaints that the opposition was attempting to steal the elections and tried to pressure the BEC to intervene in censoring the anticorruption campaign of civil society on grounds that it was injuring the SDP more than other parties. The head of the BEC Emil Ghergut took a pro-SDP position by publicly criticizing the challenger candidate and then refused to resign when the media asked him to step down.

Civil Society (Score: 2.25)

In 2004, the most visible advances in Romania were made by the civil society sector, not as a result of any support from the government, but rather in a show of protest against it. In a sort of Romanian Watergate, transcripts of SDP government meetings leaked to the press reveal that the government views civil society as a menace. A plan was drawn up by the SDP to create a counter civil society, encouraging party activists to establish new NGOs to copy and combat already existing ones. Although Prime Minister Nastase claimed that the transcripts are not fully accurate, Deputy Prime Minister Adrian Severin admitted in a talk show on Realitatea TV that the portion where he and others discuss NGOs is real. The full transcripts were published by Editura Ziua, and former minister of affairs Mircea Geoana was quoted by the BBC World Service as acknowledging the transcripts were genuine.

In this environment, NGOs continued to play an important role in the democratization of Romania more often by fighting the government than cooperating with it. Regrettably, cooperation with the government, on the rise in 2004, often meant supporting the government in multiplying the already numerous formal rules and regulations, few of which are implemented. For instance, while the legislation on policy transparency remains largely unimplemented, with law after law being produced as emergency ordinances, the government in cooperation with a client NGO spent huge sums on promoting the legislation in a confusing radio spot that failed precisely to inform citizens of their rights. Along the same lines, the government passed its electoral legislation for 2004 without respecting the legal terms of 30 days' disclosure and 10 days of public debate. Threatening to walk out and not observe elections, the main electoral watchdog NGO, Pro Democratia, forced the government to compromise on some minor points and revise the legislation. This conflict might have been avoided if debate had been allowed to take place in the spirit of "sunshine" legislation before the government moved to enact the legislation.

Challenging the government creates its own problems, but there is some evidence that it leads to more substantial results. For instance, in 2004, APADOR Helsinki Committee Romania, after fighting in court on the basis of a freedom of information act, managed to obtain final decisions against authorities that had denied information: the Ministry of Public Finance and the Office of the Prosecutor-General. In the first case, the information the authorities were required to release involved statistics on court fee waivers. In the second case, the information consisted of statistics on surveillance warrants issued by the Office of the Prosecutor-General between 1990 and 2002. However, several months after those decisions were delivered, the authorities in question had not yet complied with the court decision. APADOR decided to start enforcement proceedings provided for by the Law on Administrative Matters, which states that in the event a public authority/institution does not comply with a final court decision, the head of the authority can be brought to justice together with the authority itself and sanctioned with a civil fine per each day of delay.

APADOR filed court actions against the minister of public finance and the ministry, on the one hand, and against the prosecutor-general and the Office of the Prosecutor-General on the other, asking for the head of the institution to be fined and for civil damages to be paid by both the institution and its head. Following the proceedings against the minister of public finance, information was communicated to APADOR. After APADOR filed the court complaint against the prosecutor-general and the Office of the Prosecutor-General, the prosecutor-general (Tanase Joita) stepped down under public pressure; as a result, APADOR filed another complaint against the newly appointed prosecutor-general, Ilie Botos, who also refused to release the information.

The Bucharest tribunal decided in favor of APADOR and fined the prosecutor-general 500 ROL ($0.05) for each day of delay. At the same time, the prosecutor-general lodged an extraordinary appeal against the final decision ordering the Office of the Prosecutor-General to release the information. This extraordinary appeal was in the hands of the prosecutor-general, the only one entitled to lodge such an appeal by the Supreme Court of Justice (the prosecutor-general lost this right in the fall 2004 legislation revision). In several cases, the European Court of Human Rights held that the appeal in question was an infringement of the right to a fair trial. In this case, the prosecutor-general used his power to lodge the appeal to avoid complying with a final court decision. The proceedings are still pending, demonstrating that freedom of information statutes are observed only to the extent that an activist public is willing to push unresponsive authorities for their implementation. As a positive indicator, many other NGOs have recorded successes in their efforts to push for the implementation of transparency legislation.

The 2004 Regular Report on Romania's Progress Toward Accession shows that the credibility and expertise of civil society has increased in recent years. Besides the technical sections on acquis implementation, the report draws on many reports by NGOs, from think tanks and media watchdogs to environment NGOs. Also, civil society in Romania in 2004 for the first time organized a year-long nationwide anticorruption campaign, building a successful and highly cohesive coalition, and received unprecedented recognition from nearly every major political actor. The Coalition for a Clean Parliament (CCP) was a culmination of all the individual NGO efforts in 2004 (it won the title for the most significant civil society campaign at the yearly Civil Society Awards). It also used the reference term Romanian civil society for the first time in public discourse and with Western media. Many domestic and international media outlets covered the coalition's activities, among them the BBC, Reuters, AP, Le Monde, the Financial Times, Frankfurter Allgemeine Zeitung, Die Presse, The Economist, and countless other European newspapers. Throughout this campaign, Romanian civil society demonstrated management, planning, and fundraising capacities, all at an unexpectedly high professional level for what was allegedly considered an inexperienced and grassroots civil society.

The CCP first established the criteria for what makes a candidate unfit for a "cleaner Parliament": (1) having shifted repeatedly from one political party to another in search of personal profit; (2) having been accused of corruption on the basis of published verifiable evidence; (3) having been exposed as an agent of the former Securitate, Ceausescu's secret service; (4) owning private firms with tax arrears to the state; (5) being unable to explain the difference between officially stated assets and revenues; (6) profiting from conflicts of interest involving a public position; and so on. The CCP's second step was to discuss these criteria with the leadership of the political parties currently represented in the Parliament. The most important parties the SDP, the DA, and the HDU agreed on the criteria and further procedures the CCP had planned and also publicly announced their support for the campaign.

The CCP's third step was to gather information on candidates representing all of the abovementioned political parties. That was done through (1) collecting information released by the press; (2) researching the sites of several public authorities in charge of financial and commercial matters; and (3) verifying all collected information. The fourth step was to draw up lists of those candidates who would meet some or all of the criteria and, therefore, were believed by the CCP to be unfit to serve in the future Parliament. The resulting "blacklists" were sent to the political parties, which were asked to reexamine each case and to decide whether to withdraw or maintain the candidate. The CCP also offered to analyze each possible individual contestation. Step five consisted of political parties withdrawing a number of their initial candidates. Some of the contested candidates appealed to the CCP, which approved or rejected their applications and adjusted the blacklists accordingly. The last step was to release the final CCP lists, in the form of nearly 2 million flyers, distributed in most of the 41 districts of Romania, beginning at the village level.

The results of this process showed that many more disputed candidates belonged to the government party than the opposition. The SDP denounced the entire procedure after the final blacklists were published and encouraged their individual candidates to sue the coalition members in an emergency procedure asking courts to stop the distribution of flyers. In public statements and open letters, the RHP (and the TV station Antena 1), an SDP satellite, accused the CCP of crimes such as "conspiracy" and being "a bunch of criminals" and "civic terrorists." The SDP and the RHP also asked the main electoral authority, the BEC, to banish the CCP flyers. However, judges from both the ordinary court and the BEC ruled in favor of the CCP, and the attempt to use the judges to censor the CCP failed. It should be mentioned that, in the meantime, one of the most powerful trade unions, the Cartel ALFA, publicly stated its support for the CCP and its actions. However, in many counties and in Bucharest, faked lists were circulated in large quantities. Authors simply used the CCP list format, including the signatures of civic leaders, but replaced the names of candidates with those of members of the opposition. In this case, the lists were considered libelous by many. Although complaints were lodged against the distribution of faked flyers, the police did not intervene and allowed the fakes to circulate.

Local media and NGOs did their best to help the campaign, but as it turns out, civil society is weak in the poorest and most corrupt areas in Romania namely, districts of subsistence farming. However, through the joint efforts of students and grassroots organizations such as the Civic Alliance and Pro-Democratia, nearly 2 million flyers were distributed in every county of Romania. More than 2,000 people were involved as volunteers in this campaign, from students to union members. The estimates of illegal counter-flyers vary, but it seems there were at least as many.

For Romanian civil society to become stronger, however, structural changes are needed not only in the legislation, but also in the business community. Small- and medium-size businesses usually do not generate any extra profit for use toward sponsoring civil society causes and organization. On the one hand, the business environment is still difficult; on the other, the fiscal burden is considered such that firms prefer to spend rather than record profits that would be taxed. More important firms are often caught in the vicious cycle of trafficking influence and tax arrears. Few businesses are completely clear, as the practice of not paying tax arrears to the state or not repaying loans to state-owned banks is widespread, especially if one has political connections. Despite these difficulties, NGOs raise some money from private sources, but unless one can trust that a sponsor is not a potential criminal, not even better sponsorship legislation will increase the general reliance on private sources. Only substantial progress in cleaning the business environment can advance the cause of domestic sponsorship for Romanian civil society.

However, the new government has been rapidly improving the environment for civil society. First, the 2003 government ordinance regulating civil society finally arrived in line for parliamentary approval and was considerably improved by the new Parliament. According to the new ordinance, it is no longer compulsory to get approval from the government when setting up a new NGO. Also, equality among NGOs was reinstituted, dispensing with the distinction between ordinary NGOs and "public utility" NGOs, a government-granted status that NGOs claimed was declared arbitrarily. Furthermore, a revision of the fiscal legislation allows citizens to grant up to 1 percent of their taxable income to an NGO of their choice. This fiscal reform will be enacted for the first time in 2005.

Independent Media (Score: 4.00)

Strained by its swift move toward EU accession, Romania throughout 2004 continued to display what has become the main feature of the Romanian political society the distance between the "legal country" of formal regulations and the reality of actual conditions in Romania, a gap that at times seems to be increasing rather than decreasing. Under pressure from the EU, especially after one unfavorable report presented by European parliamentarian Baroness Emma Nicholson in March 2004, some formal advances were made in the field of press freedom. In June 2004, the criminal code was amended to repeal the crime of "insult," removing the possibility of a prison sentence for slander and aligning requirements on the burden of proof with those of the European Court of Human Rights.

On March 8, the CNA issued a decision asking television broadcasters to balance their coverage of the executive, the parliamentarian majority, and the opposition this after years of imbalanced coverage in favor of the SDP and Adrian Nastase, as noted by the Media Monitoring Agency, the main media watchdog in Bucharest. The Romanian Convent of Media Organizations adopted the Statute of the Journalist and the code of press conduct in July 2004 to address the continual complaints of politicians about irresponsible journalism. The Romanian legislation on free access to public information, adopted in 2001, continued to be an important mechanism promoting public accountability. Both NGOs and the media resorted successfully to this piece of legislation to obtain important information in the public interest. The print press, even the local media, often very weak financially, played a significant role in ensuring that citizens received relevant and balanced information to facilitate their participation in the November 2004 elections.

On the downside, however, systemic problems in the media environment that affect the country's realization of freedom of expression grew only more obvious in 2004. Most electronic media in Romania are controlled by vested interests, and a small financial oligarchy captured most of the provincial print media as well. Public media, whose boards are politically appointed, are biased in favor of the government. A report by the internal Ethic Committee of Romanian Public Television is the first inside confirmation that complaints of censorship and bias from journalists are well-founded.

Challenges to media freedom can be divided roughly into three categories: acts of censorship, violence directed against journalists, and attempts to control media through ownership. In the first case, censorship and self-censorship by editors due to economic pressures remain serious concerns. Various regulations have only added to the problem. During the 2004 local elections, police were sent to the independent radio station Total to enforce the "no campaigning on election day" rule; a talk show guest had described her neighborhood in critical terms, which was interpreted as criticism of the sitting mayor. Additionally, an SDP deputy, Ion Olteanu, proposed a law regarding "the protection of a person's private life, name, image, house, and correspondence." A general media protest against this draft, seen by journalists as an attempt to prevent anticorruption investigations, managed temporarily to stall the project. Also, the broadcasting watchdog CNA banned a radio spot by the national daily Evenimentul Zilei on the grounds that it was "an indirectly negative electoral campaign." The spot actually consisted of a number of headlines that covered different political scandals or acts of corruption in which several politicians from the SDP were involved. The incident happened outside the official electoral campaign period.

On another occasion, Evenimentul Zilei published a classified internal regulation signed by the secretary-general of the government stating that all ministers and other central administration authorities, including companies under state authority, could sign advertising contracts only with the approval of the prime minister. As Romania has the largest state sector among accession countries, public enterprises account for a significant share of advertising, although public advertising represents a small percentage of the total advertising market. Some small newspapers without circulation rely heavily on public advertising, which is sometimes used openly to settle debts with private media. State monopolies with no competition and limited public contact, such as the Bucharest airport or the Constanta port authority, buy advertising space in favorite newspapers to help increase their revenues.

The former government used legal regulations to influence media reporting, but other less formal channels were used more heavily. Journalists in the public media from both radio and TV denounced political pressure and self-censorship of editors. Reports from the Media Monitoring Agency repeatedly showed that TV news is notably less critical of the government than is the written press. Political talk shows disappeared entirely or were pushed later than eleven o'clock at night, despite their status as public favorites. Political news was squeezed in at the end of newscasts and sensationalized into tabloid news. Consequently, the audience for news and current affairs, which led ratings in the late 1990s, has disintegrated. This is not a misguided programming strategy, but a concerted attempt by stations to cut their political costs, even if it means losing a significant share of their audience.

The government has tolerated the accumulation of significant tax arrears by a number of the largest media companies, including most major private TV stations, according to the November 2004 European Commission Regular Report on Romania. Stations have needed to be on good terms with the government, as many have been unable to settle these debts. An attempt by the government to solve the problem of tax arrears by offering payment plans to some of the companies during the fall 2004 electoral campaign was only marginally successful (just a few paid), so the new government had to coerce the remainder into settling their debts beginning in 2005. There are also credible reports of locally elected officials using public office to influence the editorial policy of local newspapers, radio stations, and TV stations.

Another frequent phenomenon preventing information from reaching the readers is the practice of tampering with the distribution of newspapers. When the dailies Romania Libera and Evenimentul Zilei published the famous SDP transcripts and the investigation weekly Academia Catavencu published the CCP's blacklists of morally unfit parliamentary candidates, these issues either vanished from the market or reached subscribers without the essential pages.

Another major challenge to media freedom is violence directed against journalists. According to both domestic and foreign media watchdogs, such as Reporters Without Borders, violent threats and violence against journalists did not decrease in 2004 as compared with previous years, despite the government's pledge that police would prosecute these cases more diligently.

Many incidents involve authorities, who are themselves the main aggressors. In 2004, a photojournalist from Evenimentul Zilei was threatened by the prefect deputy of Timis County when the journalist tried to take a picture of him. And in Timisoara two journalists working for the weekly Banateanul were threatened aggressively and sequestered for taking pictures during an electoral visit to a school by the SDP candidate to Timisoara City Hall. In Bacau, the former SDP mayor there, Dumitru Sechelariu, threatened to kill a journalist from Gazeta de Bacau during a phone conversation.

The third major challenge to media freedom is excessive control through ownership. This category highlights essential limitations to media freedom in former Communist Europe. Informal links, rather than open threats, create a network of compliance around government actions. For instance, a few years ago some publishers, many of them with a Communist or Securitate past, formed the Romanian Press Club (RPC), a corporate media organization granted the authority to establish media protocols that would exclude newcomers with different ideas and generally keep journalists under control. One of these informal rules, often quoted in media circles in Bucharest, states that members of the RPC would not hire a journalist who resigns (or is ousted) from another media club as the result of a conflict with management. The president of the RPC published an editorial on press freedom in which he stated that only owners (not journalists) have the right to decide what the newspaper stands for.

Two RPC members with distinctive profiles are publishers Petre Mihai Bacanu a former dissident from Ceausescu's times who had published the only attempt at a Romanian samizdat publication and Cornel Nistorescu, one of the founders of the new Romanian free media. Nistorescu was popular among journalists thanks to his reputation for giving absolute freedom to the talented young editors and investigative reporters at Evenimentul Zilei, his daily. In 1990, Bacanu reinvented Romania Libera, a newspaper that resisted attacks by miners that same year to become the flagship of Romanian anti-Communism. However, both Bacanu and Nistorescu sold majority shares in their publications to foreign owners Evenimentul Zilei to Bertelsmann and Romania Libera to Westdeutsche Allgemaine Zeitung (WAZ), both German conglomerates. Bertelsmann then sold Evenimentul Zilei to Ringier (a Swiss company), a transaction opposed by Nistorescu and one that looked doubtful for a time, as Ringier already owned the other two most widely distributed Romanian dailies, a tabloid and a sports newspaper. However, the Romanian Competition Council, the regulating body in the press arena, gave its blessing to the transaction as long as the interests of Romanian media consumers would not be jeopardized.

Nevertheless, the peace between the new owners and the editorial staff did not last long. Despite the fact that both Nistorescu and Bacanu had contracts securing their final say over content, the new owners intervened at both newspapers to ask for important editorial changes. In both cases, they required more infotainment and less criticism of government, claim the two editors, supported by their staff. Romania Libera also claims to have evidence linking the former Romanian government with the foreign owners. Nistorescu stepped down, and WAZ finally sold Romania Libera to a Romanian investor. The scandal surrounding the two cases damaged the reputation of these two foreign investors. Ringier subsequently fired Nistorescu's deputy at Evenimentul, and most of the journalists quit in protest.

These incidents reveal structural problems in the environment in which the Romanian media operate. First, Romania has a political elite, especially among anti-Communists, which has not come to terms with the concept of media freedom. A note from the press office of Romanian minister of defense Iona Mircea Pascu reminded journalists to mind their own business, as life is short and health precious'. This kind of language is common from the government, as is the use of coercive influence. For instance, the president of the Chamber of Deputies, Valer Dorneanu, is quoted in the transcripts of an SDP governmental meeting as saying: "I keep wondering why do we continue to support all these press institutions&with the old tax breaks, with sponsoring, with advertising, while what we get in return is just some vague, individual reprieve at best?&" And Serban Mihailescu, former secretary-general of the government, is quoted as saying: "We should use the method that worked so well with Antena 1. Before the program we should call and talk to them, because Adrian [Sarbu, the owner of ProTV] asks something from me every single day."

Second, readership is low and the quality of reporting mixed. It is considered acceptable for media outlets to participate in influence trading rather than make a profit out of accurate reporting. Editors claim with some justification that accurate information and objectivity sell poorly, so other than a few NGOs there is not a large, sophisticated readership that struggling newspapers can appeal to. Third, many positions of influence are still held by members from the old regime and their younger cronies. Evidence published by an Evenimentul Zilei investigative journalist based on files from the CNSAS makes the claim, for instance, that on a particular private TV broadcaster, the public television correspondent to Washington, the editor in charge of editorial campaigns, and another producer of campaign shows are all former Securitate informants.

Local Governance (Score: 3.00)

Romania has a twofold structure of local government based on the French model, with mayors and local councils elected locally (the former directly, the latter on party lists by proportional system) and county prefects appointed by the central government. The 2003 revision of the Constitution was supposed to clarify the legal framework by specifying that local authorities are not subordinated to the centrally appointed prefects. It was followed by legislation on decentralization and the prefect institution, establishing the Law of the Corps of Prefects, in July 2004. In practice, however, prefects and the honorary heads of county councils have come to enjoy the largest influence at the local level. Local elections operate very well as vertical accountability mechanisms, and quite a few notoriously corrupt mayors lost their offices in June 2004. The two more remarkable cases were Dumitru Sechelariu, mayor of Bacau who legislated a local transportation monopoly, then entrusted the company to his mother and Gheorghe Funar, the nationalist mayor of Cluj, who was under investigation in a number of suspected cases of embezzlement. Like many other former Communist states after 1989, Romania has embraced the institutional philosophy of decentralization. Important steps were made in the early 1990s with the first laws concerning local governments and revenues; and in 1998-1999, new local finance legislation instituted for the first time in Romania a system of resource sharing based on automatic formulas, thus making the local budgetary process more autonomous, transparent, and predictable.

However, other developments lag behind. The Law on Local Public Administration is largely silent regarding the functions and responsibilities of local governments at various levels. Typically, it is the annual Law on the State Budget that defines implicitly these functions and responsibilities, shaping the structure of local government. New "mandates" are established by the central government and passed down without much preparation to local governments, which has led to a permanent state of semi-crisis at the local level.

The inconsistent definition of local government in Romania creates inefficiencies, paralysis, and space for political games at the local and county levels. There are disputes about the lines of subordination between mayors and councils, counties and localities, and local governments and the territorial offices of central government (that is, prefects and ministries). The problems become most visible in cases of political cohabitation, such as occurs when a mayor and local or county council majority come from different parties. This happens either as the result of elections or when councillors migrate from one political affiliation to another. In the case of Bucharest and Brasov, the tension has escalated in recent years to a point where local government operations have become virtually paralyzed. This has happened in Romania because formal administrative institutions are weak; consequently, informal party committees make backroom decisions on major issues.

The status of the mayor (elected directly) vis-à-vis the council (elected by party list) and deputy mayor(s) (elected indirectly, by the council) is not clear. The mayor's office is not defined as a public institution in terms of responsibilities and legal authority, nor is it clearly legitimated within the local community. The definition of the mayor as "the head of local government" is not articulated in its list of functions, which becomes problematic in cases of cohabitation. In theory, the mayor delegates some functions to deputy mayors (elected by the council from among its members) and is then responsible for overseeing their performance. This can lead to unworkable arrangements. The council can pass functions to deputy mayors without the mayor's approval, in which case the mayor may not be able to control or discipline deputy mayors yet continues to bear responsibility for their actions.

Formally, mayors have no governing apparatus of their own, and their offices are under the auspices of the local councils. Paradoxically, the mayor has little say in deciding the structure and staff of the apparatus he works with, unless he is able to exert control by informal pressures. Quite the contrary: Recent years have shown that the council has the authority to strip the mayor of functions, altering radically the structure of the local government. For example, in Bucharest there were attempts to alter the legal status of the mayor's office; and in Brasov, the council created a Service for Public Patrimony (SPP) under a standing committee of the council, which took over the most important executive functions of the mayor's office, such as managing or privatizing local assets and contracting public services. In so doing, the SPP gained control of more than 50 percent of the local budget and began to act as a parallel city hall (180 employees versus 230 in city hall), with authority over local investment and development functions. In theory, the Romanian mayor is defined as "the head of local government" and is politically accountable to the community in this capacity; but in practice, a mayor does not have much more power than a city manager appointed by the council. This dilemma is less visible when there is party alignment on both sides and thus a basis for informal negotiations.

The local council's secretaries (top local civil servants) are appointed by prefects and report only to them, thus creating a link from local government through the prefect to the central government. This de facto subordination to the central government occurs in spite of a constitutional provision postulating that no such subordination should exist. There are cases where official contest for the position of secretary has been blocked for years. The secretaries are important at the local and county levels, since they can undermine in practice the actions of the local authority they are called to serve. For example, the secretary can give legal clearance to decisions that are subsequently challenged in court by the prefect. In such situations, mayors are threatened with suspension when three such cases are initiated. However, no actions are taken against secretaries for failing to perform the legal screening function, which is in fact their main duty.

Prefects are constitutionally charged to control the legality of decisions made by local/county councils and mayors. But there is no proper mechanism to ensure the accountability of the prefect in this respect and no single precedent where prefects were held accountable for their actions or lack of action. Briefly, the prefects can choose not to initiate action against cases, without being held responsible for this selective enforcement of the law. Their relationship with the county councils is a clear case of institutional capture of the regulator by the regulated.

The history of fiscal decentralization in Romania can be summarized by saying that county councils have been allowed to "confiscate" most of the space for local autonomy created in recent years by the central government, and now they exert this autonomy at the expense of localities whenever a conflict between tiers of governance occurs. When distributing the equalization grants, deviations from the fiscal capacity formula are tolerated on a large scale. Therefore, no local council knows for sure what amount it will receive from the county council. The process typically involves significant individual "negotiation" between the local officials and the county council and also applies to other transfer funds, particularly those for investments. This overall dilemma is likewise enacted between counties and the central government. Rural communities, which are generally most in need, are the most likely to suffer from this erratic distribution of funds. The most important skill of rural mayors has become the ability to negotiate with the county council to secure the highest possible allocation.

Judicial Framework and Independence (Score: 4.00)

The Romanian judiciary continues to transition, with most institutions overhauled by legislative changes in 2004. The 2003 constitutional revision transformed the Supreme Court into the High Court of Appeals and Justice, providing its newly appointed members with lifelong tenure and the judiciary with separate and equal state power. In June 2004, the Law on the Superior Council of the Magistracy, Law on the Organization of the Judiciary, and Law on Magistrates were adopted, although the three-law package that entered into force on September 30 has not yet been implemented effectively. The Superior Council is to assume full responsibility for the recruitment, career development, and sanction of judges and prosecutors. By the end of 2006, all cases should also be allocated to judges on a random basis by an automated system.

The minister of justice may no longer appoint judges directly or promote magistrates to higher courts, prosecutors' offices, or management positions in the Superior Council, which is a positive development in terms of creating an independent judiciary. The minister will continue to attend sessions of the two sections of the Superior Council, either with full voting rights or with the de facto ability to influence decisions. To be elected to the Superior Council, one needs to have served as a magistrate or prosecutor for a significant number of years; therefore, the first elected council is quite conservative. For instance, it elected as secretary and undersecretary magistrates with a history of cooperating in the Communist repression of the political opposition. Meanwhile, the government has changed and a minister has been appointed who has worked as a human rights lawyer for the Council of Europe. Beginning in 2005, all appointments and control powers will be in the hands of a conservative council, while a new progressive minister is in place who will be accountable to Brussels for fast progress in the reform of the judiciary a paradoxical situation at best.

The Superior Council will work as a permanent institution, but the Ministry of Public Finance must endorse the council's operating budget and staffing proposals. The Superior Council does not have the right to make a budgetary proposal for the judicial system (other than those for its own use), but the Ministry of Justice is required to obtain the council's formal assent to its proposals in these other areas. The Romanian Alliance for European Justice (AJER), an NGO coalition, asked that members of the council give up their other positions in the judiciary and work on a full-time basis. A Freedom House audit ordered by the government found that 9 of the 15 members of the council are also executives in the judiciary, which raises doubts as to their ability to work effectively as an independent control body. The AJER and Freedom House audit of the government's anticorruption policies recommend that in the future, an incompatibility clause be introduced denying heads of courts the right to sit on the Superior Council unless they resign from their executive positions.

Following the 2003 constitutional revision, judges in the high court will be tenured for the first time. President Ion Iliescu nominated an old friend and official adviser as president of the court, a law professor who has never been a practicing judge but who taught principles of government in the old Communist school. The European Commission in its annual report criticized this appointment. Also, after much pressure from the World Bank and European Commission, the Chamber of Deputies decided to discontinue the right of the Office of the Prosecutor-General to make extraordinary appeals in high court sentences. However, as has happened in the civil courts, current extraordinary appeals have not been suspended and will be judged.

Until these recent changes were enacted, the prosecutor-general had enjoyed for most of the period of transition exclusive authority to file extraordinary appeals against final judgments (habeas corpus, etc.) in both criminal and civil cases; these appeals were undertaken at the prosecutor-general's initiative or if required by the minister of justice. In civil cases, such powers were exercised inter alia where the courts had exceeded their jurisdiction. Between 1994 and 1996, this ground was used extensively by the prosecutor-general and the Supreme Court to return unlawfully nationalized houses to their owners; it was generally the prosecutor-general's contention that the courts did not have jurisdiction over such cases. Although the European Court of Human Rights found this procedure to be contrary to the right of access to justice and the right to peaceful enjoyment of possessions, the legal provision granting the prosecutor-general extraordinary appeal powers in civil matters endured in the civil procedure code until 2003 and in the criminal code until fall 2004, when it was finally dropped under pressure from the European Union. From January 1,2001 through the end of 2004, such powers were extended to cases where the courts adopted wrong decisions by violating the law, which could be exclusively a matter of interpretation and/or law. The extraordinary appeal meant that the prosecutor-general could appeal final sentences handed down by the Supreme Court and have them retried by a new panel of judges. As cases were not distributed randomly, this left significant room for political intervention.

A 2004 referendum ordered by the Ministry of Justice found that a majority of judges had come under political pressure while exercising their official duties. The transcript of government party meetings previously made public contains infamous passages on the judiciary. Former minister of justice Rodica Stanoiu (who stepped down owing to pressure by civil society and European Union in March 2004) is quoted as saying how she screened investigations of corruption to spare SDP clients. Prime Minister Adrian Nastase is also on record as asking the privatization minister to provide evidence to convict opposition members, despite the minister's denial that records on previous governments can be found in his ministry. However, no investigation agency, including the anticorruption prosecutor, asked the government party to turn in original tapes of the Internet transcripts. The "Romanian Watergate" is hampered by the judiciary's incapacity to pursue independent investigation.

Access to justice is perceived as uneven by citizens, who overwhelmingly agree in surveys that some people are above the law. Courts struggle to improve their professionalism, yet the quality of judgments remains a problem, and errors made by lower courts continue to be discovered in approximately 30 percent of the civil judgments that go to appeal. The heavy workload of judges, their limited access to case law, a lack of information about new legislation, poor circulation of information within the judicial system, and a lack of training and specialization explain these shortcomings.

The majority of cases overloading the courts are due to the confusing property restitution legislation. The Romanian government lost significant cases in the European Court of Human Rights in Strasbourg in 2004. The court ruled on property restitution, overturning the extraordinary appeals the government had made against the owners; it also ruled on press defamation, rehabilitating a journalist sentenced in Romania, and on treatment of prisoners. The authority of the court and steady pressure from the EU remain the chief factors promoting judiciary reform, as political will from the government remained insufficient in 2004. The home and justice affairs chapter was concluded with several conditions related to the judiciary, which if left unfulfilled could delay Romania's accession by a year.

Corruption (Score: 4.25)

Romania rates high in state capture and administrative corruption, the two most frequent indicators used by the World Bank. A Gallup survey in fall 2004 showed that a majority of the population perceived corruption to be rising instead of decreasing. Such perceptions are fed by an increase in high-level corruption, as other surveys, such as the Romanian Barometer of Opinion, have shown that the practice of bribing has decreased, so petty corruption is decreasing over the years. The political situation in recent years has not encouraged an effective implementation of the National Anticorruption Strategy, adopted in 2002, as the SDP has intently pursued the deep politicization of the administration and every executive position (such as hospital directors, school principals, and so forth). While most administrative resources have been in the hands of one party in the service of political clientele (for instance, infrastructure funds went mostly to the counties of the transportation minister and deputy minister), the media and the judiciary have remained captured by oligarchic networks.

In 2004, the Romanian government made some effort to improve the regulatory framework of anticorruption. The country's first code of conduct for civil servants brought some clarification to the conflict of interest legislation by specifically defining public interest, personal interest, and the situations giving rise to conflict of interest. However, the code applies only to civil servants, leaving elected and appointed officials out of reach of these well-developed provisions; in addition, it favors civil servants higher in the hierarchy. The government also set up a "stimulation fund" for police. The fund represents 1 percent of proceeds from criminal activities and is supposed to offset the low incomes of police, which have traditionally incentivized corruption.

Government Decision 438 enacted the ethical code for police, who are forbidden from accepting money, goods, or other favors in the line of duty. Nevertheless, the requirements for police are less demanding than those for civil servants. Law 67 on the election of representatives in local authorities also introduced the crime of "electoral bribe" into the penal legislation. It is defined as "the promise, offer, or giving of money, goods, or other advantages during the electoral campaign, to the aim of determining the elector to vote or not to vote a certain list of candidates or a certain candidate for the position of mayor and local councillor." The regulation comes as a consequence of the violations reported during the referendum on the revised Constitution in 2003. However, enforcement of these provisions remains unlikely, and during local and general elections perks offered in exchange for political support were widespread practice. The Emergency Ordinance of April 24,2004, amended previous provisions concerning assets control, demanding asset declarations by candidates for elective positions as well (such as the president, Parliament, local and county councils, and mayors). Declarations were useful for watchdogs, such as the CCP, which revealed scores of discrepancies between transparent income and declared wealth.

Like other countries in the region, Romania adopted various recipes from the global anticorruption arsenal. The government was asked to discuss the issue publicly, professions operating mostly by trafficking influence were encouraged to adopt codes of conduct, and a society already suffering from informal and insufficient law enforcement was pushed to adopt numerous new laws and regulations. On top of everything, a defective judiciary system was burdened with the task of cleaning up the rest of society. The National Anticorruption Prosecutor Office, the main anticorruption prosecuting agency, maintained the pattern of charging only political opponents, raising public skepticism. While 52 percent of Bulgarians in a 2003 Gallup poll perceived that the credibility of their government had improved compared with previous years, 53 percent of Romanians perceived it had decreased even further.

The CCP provides some evidence on high-ranking corruption, a variety that is rarely if ever prosecuted in the courts. On the first count, the CCP documented 143 cases of candidates from the government party who, in one form or another, had made use of their public position for private gain – either amassing fortunes clearly not in line with income declarations or switching from one political party to another to keep or receive some privilege. Many prefects, deputy prefects, and secretaries of the prefects' offices can be found on the list, along with heads of county councils. SDP members cluster in a few famous businesses that thrive on public contracts and where many party members are shareholders. Under pressure from civil society, the SDP retired about 30 people from its electoral list. The coalition also dropped fill-in candidates, so on the final count the SDP and the RHP had 95 candidates who were considered unsuitable. The other parties' numbers complete the picture. After the DA retired some candidates, 10 blacklisted candidates were left, together with 3 HDU candidates and 46 GRP members.

The map of Romania, as drawn by the CCP, is also telling. Parties tend to be cleaner in Bucharest, where grand fraud is usually practiced legally by skipping tenders or passing legislation to ease tax arrears of political clients. The picture is different in provincial Romania. Counties such as Arges, Dambovita, Giurgiu, Gorj, Ialomita, Dolj, Botosani, and Teleorman and the poorest subsistence farming counties in Oltenia, Muntenia, and Moldova represent almost all the top candidates on the CCP list. In other counties, such as Bihor or Iasi, practically all political parties are in the business network, and it is difficult to find any clean electoral list. At the other extreme, the more developed Arad or Sibiu counties in Transylvania have few names on the list, and all political parties tend to be cleaner there. From the hundreds of candidates screened, none declared a conflict in their conflict of interest statements, now compulsory by law in addition to statements on assets. Yet more than half own businesses in their own name or their wives and children's names. The list suggests that the main incentive to become a politician, at least with a governing party, is to be included in the business network. Among other perks, this affiliation protects politicians from the tax office, ensures at least a share from every public contract in the region, and guarantees that every public institution in the area will buy from one's private business in short, that one gets a rent. Thus, Romania's development map and corruption map are correlated.

Fresh evidence of corruption starting at the top was indicated in the aforementioned government party transcripts. Nicolae Vacaroiu, an SDP top leader and president of the Senate, is quoted as having said: "We must find a way to dissipate this image of SDP as the only corrupt party.... I also talked to [Ionel] Blanculescu [minister of control], and I said, All right, I agree, you may expose one of ours in a press conference if you have five from GRP, four from PD, and two from PNL alongside him." And Florin Georgescu (minister of finance 1992-1996, PSD leader, and current deputy governor of the Central Bank) made the following remarks during the standing committee meeting of the PSD, October 20,2003: "President, I beg you to talk to [Doru] Saguna [head of the audit court], on behalf of the party; he doesn't listen to me anymore. He should stop all those files and investigations. Only God knows how many telephone calls I have to make to his subordinates.... Especially, President, remember that tomorrow-tomorrow!all these files leave from the audit court to the ordinary courts. And if a crazy auditor writes something on paper, that file is not going to stay at the audit court, where we have our people at the top, [where] I can make some telephone calls and have the case closed properly. No, it is going to reach ... a territorial court among divorces or petty thefts, and it will leak to the media instantly."

The change in government at the end of 2004 brought some positive developments: the passage of a more exhaustive declaration of assets, opening of a string of official investigations regarding alleged corruption, and pursuit of businesses with tax arrears that previously enjoyed immunity from enforcement. But there is still a considerable way to go for Romania to make effective use of anticorruption instruments created in recent years. An audit by the Romanian Academic Society and Freedom House of the government anticorruption strategy resulted in a new strategy and action plan focusing on better coordination among prosecutors and control agencies and recommending that more administrative steps be taken against corrupt practices prior to enacting the judicial steps. An investigation into the SDP transcripts scandal was also initiated more than two months after the scandal broke. However, the investigations have been timid, and prosecutors do not dare openly defy well-known influential actors. Former prime minister Adrian Nastase managed to secure a position as chair of the Chamber of Deputies, despite losing the government. It would not be easy for a prosecutor to pursue an investigation against him, although he presided over all the meetings recorded in the SDP transcripts and made quite a few problematic statements. The SDP is certain to defend itself and its business cronies by claiming that a political campaign of harassment is being directed against it by an opposition party. Corruption is so politicized in Romania after the Ion Iliescu dominated transition that any serious anticorruption campaign must risk damaging numerous major political figures of the former Communist establishment if it is to succeed.

Author

Alina Mungiu-Pippidi is the director of the Romanian Academic Society.