1.1 Classification of Criminal Offences
Romania has ratified the Criminal Law Convention on Corruption, Strasbourg 1999 by Law 27/2002 and the Additional Protocol (ETS 191) was ratified in 2004. These treaties came into force in Romania on 1 November 2001 and 1 March 2005, respectively.
The main rules regulating corruption in our country are contained in the Penal Code (PC) in force as of 1 February 2004, as well as in Law 78/2000 on preventing, finding and punishing acts of corruption.
The provisions of the present PC criminalising bribery and influence peddling (Articles 289 to 291 of the PC) can be considered ”traditional crimes”, in the sense that they date back to the time when the communist regime did not distinguish between corruption in the public sector and that in the private sector; in fact, the range of bribery and influence peddling crimes is set forth in a PC chapter named ”Corruption Crimes and Crimes in Office”, which apply to all areas of activity.
Romanian criminal legislation does not provide for different classifications of criminal act dependent upon the degree of social menace or seriousness of that committed act. At the same time, a concise definition of crime is not to be found in the PC though one can be deduced from Article 15, which establishes the essential features of a crime, namely:
- acts criminalised by the penal law;
- acts committed in guilt;
- unjustifiable acts imputable to the person having committed them;
Where the analysis of a crime is concerned, it is necessary to distinguish between:
- legal content – the definition of a crime;
- pre-existing conditions – the object of a crime (special and material) and the subjects of a crime (active and passive);
- constitutive content – which contains the objective side (the material element, the immediate consequence and the cause-effect relationship) and the subjective side, which refers to the form of guilt in committing the crime (intent, negligence or exceeded intent).
The PC provides for several means of committing a crime including attempted crimes, though these are only punishable when the law specifically provides so, as set out in the provisions of Article 33 para. 1 PC. As far as the penalty regime is concerned a lesser penalty is provided for attempted crimes; they are punishable with half the penalty provided by the law for the completed crime.
A final notable aspect of Romanian criminal law is the institution of discontinuance and of the prevention of the occurrence of criminal results. This provides that the law does not punish perpetrators who, before the crime is discovered, have ceased committing the relevant act or have notified the authorities about the committing thereof, so that consummation could be prevented, or the perpetrators themselves prevented the consummation of the act. However, if the acts committed up to the moment of the ceasing or preventing of the result represent another crime, the penalty for that crime will be applied.
1.2 Statute of Limitations
Romanian legislation provides limitation periods for criminal liability differentiating, not by the type of crime, but by its gravity. These limitation periods are expressly established based on the special maximum penalty for the crime.
The limitation periods for criminal liability are regulated by Article 154 PC and are the following:
- 15 years; when the law provides, for the committed crime, life detention or a prison term longer than 20 years;
- ten years; when the law provides, for the committed crime, a prison term longer than ten years, but not exceeding 20 years;
- eight years; when the law provides, for the committed crime, a prison term longer than five years, but not exceeding ten years;
- five years; when the law provides, for the committed crime, a prison term longer than one year, but not exceeding five years; and
- three years; when the law provides, for the committed crime, a prison term not exceeding one year or a fine.
These terms start running from the date when the crime is committed with the particularity that, in the case of continuous crimes, the term runs as of the date of the ceasing of the action or inaction.
1.3 Extraterritorial Reach
Romanian penal law sets forth the principle of territoriality, which means that penal law applies to crimes committed in the territory of Romania, but may also apply to crimes that are not committed in territory of the state if:
- the act has been committed by a Romanian citizen or by a Romanian legal person and the punishment provided by Romanian law is life detention or imprisonment for longer than ten years;
- the act has been committed by a Romanian citizen or by a Romanian legal entity and is illegal in the country where it has been committed or has been committed in a place that is not subject to the jurisdiction of any state;
- the act was committed outside Romanian territory and by a foreign citizen or a person without citizenship against the Romanian state, a Romanian citizen or a Romanian legal person;
Romanian penal law also applies to crimes, other than the ones mentioned above, committed by a foreign citizen, or by a person without citizenship who is willingly in the territory of Romania, if the crime committed is one that the Romanian state has undertaken the obligation to suppress under an international treaty, regardless of whether this act is criminalised by the penal law of the state in whose territory the crime has been committed. This is the case even when extradition or surrender of the offender has been requested and the same has been denied.
1.4 Corporate Liability and Personal Liability
Romanian legislation provides for the criminal liability of legal, as well as natural, persons with some exceptions; specifically states, public authorities and public institutions.
Based on Article 135 PC, a legal entity can be held criminally liable for crimes committed in the performance of its activities or in the interest or name of the legal entity.
The criminal liability of a legal entity does not exclude the criminal liability of a natural person who has contributed to the committing of a criminal act, there being a special provision in that respect in Article 135 para. 3 PC, without a legal preference as to the entailing of criminal liability.
Usually, the criminal liability of an individual within a legal entity refers to the leader of the entity, generally the statutory director. The relevant role in cases of criminal liability is the de facto, and not the de jure, director when the person in question does not act in both capacities.
The Romanian criminal code establishes the principle of personal criminal liability, based on which the person committing the crime is held liable. In the matter of the criminal liability of legal entities however, examination of the elements thereof reveals the fact that they should not be treated, from a legal point of view, identically to individuals, since the latter literally cease their existence by death, while merger, absorption or spin-off of represent other forms of existence for legal entities. Article 151 PC, ”effects of merger and spin-off”, provides for these situations. When a legal entity loses its legal personality by merger, absorption or spin-off after the committing of a criminal offence, the criminal liability shall be borne by the legal entity formed by merger, by the absorbing legal entity or, as the case may be, by the legal entities created by the spin-off or who have acquired fractions of the assets of the spun-off legal entity.
1.5 Damages and Compensation
Under Romanian law, a criminal trial has two elements: one criminal, which consists in the entailing of criminal liability to the person committing a crime; and one civil, which is meant to repair the damage caused by the criminal offence.
From a procedural point of view, there are no special conditions to be met for compensation for the damage resulting from a white-collar crime. Article 20 of the Procedural Penal Code (PPC) compels the victim to constitute itself as a civil party in the criminal trial. In other words, an essential condition the victim must meet in order to obtain reparation for damages is to address the judicial authorities with a complaint specifying the amount of the claim, the grounds of the complaint and any evidence the victim wishes to use to prove its claims.
A request by a victim to constitute itself as a civil party is addressed to the judicial authority (the criminal pursuit authority or the court), which respectively investigates the crime or hears the case. This request occurs at the first hearing in the trial phase.
With regard to reparation for damage, when a request for constitution as civil party is submitted in the penal trial, the court hearing the criminal matter in question is bound to rule on both the criminal and civil elements of the trial, as per the provisions of Article 25 para. 1 PPC and Article 397 para. 1 PPC.
However, there are situations when the penal court will not rule on the civil aspect in view of awarding compensation, namely when the injured party was not constituted as a civil party in the penal trial or in situations expressly provided for in Article 25 para. 5 PPC, when the criminal court leaves the civil aspect unresolved. In both cases, jurisdiction belongs to a civil court which will be chosen based on the jurisdiction regulations expressly provided for by the Procedural Civil Code (“CC).
As far as the other offences that come within the scope of white-collar crimes are concerned, reparation of damage can represent a mitigating circumstance and can have, as its effect, a lower penalty.
1.6 Recent Case Law and Latest Developments
Romania has made significant progress in the fight against corruption, the legal framework having been constantly improved since2002, when Law 27/2002, ratifying the Criminal Law Convention on Corruption, Strasbourg 1999 and the Additional Protocol (ETS 191), 2004 became effective.
At present corruption and corruption-related crimes are better regulated by the Penal Code effective as of 01 February 2014.
2.1 Enforcement Authorities
In the Romanian legal system the relevant authorities for the investigation and adjudication of white-collar crimes, known as the judicial authorities, are divided into two categories: criminal pursuit authorities and courts. In both cases there are departments, sections, services, offices and, as the case may be, panels of judges specialised in this type of crime.
As far as the activity of criminal pursuit is concerned, the prosecution bodies involved in the investigation of white-collar crimes may differ according to the type of crime committed. For instance, when dealing with corruption and crimes in office, the relevant prosecution body is usually the National Anticorruption Directorate (DNA) inside the General Prosecutor’s Office. When dealing with economic crimes, the competent prosecution body is usually the Prosecutor’s Office attached to the Tribunal, but can also be The Directorate for Investigation of Organised Crime and Terrorism, within the General Prosecutor’s Office in cases where the file contains elements suggesting that a crime was committed by a criminal group.
The courts are composed of panels specialised in certain types of criminal offenses.
2.2 Initiating an Investigation
There are no special rules concerning the initiation of investigations into white-collar crimes, see 2.6 Prosecution below for information on the initiation of white-collar prosecutions.
2.3 Powers of Investigation
The means to pursue or investigate a white-collar crime are the same as with other crimes., The following procedures are often employed: gathering data regarding the performance of financial transactions; domicile/headquarter raids; collection of evidence, objects and documents; and expert technical reports.
2.4 Internal Investigations
In Romanian criminal procedure, investigations and the production of evidence are carried out by criminal investigation bodies during the phase of criminal pursuit, and by courts during the trial phase. Criminal procedural law provides that the investigation body collects and uses evidence both in favour of and against the person suspected of committing the crime, without expressly stipulating cases where investigations can be made by parties.
However, any party to a criminal trial may produce evidence in their favour, this evidence is produced before the judicial body and may consist of documents, parties’ statements, witness testimony and expert reports. It should be noted that the latter may be of either a judicial nature – that is required by the judicial body ex officio or at parties’ request – or an extrajudicial nature, especially in the case of expert reports ordered and paid for by the interested party.
2.5 Mutual Legal Assistance Treaties and Cross-Border Co-operation
Cross-border co-operation in criminal matters takes place in several ways, the most important of these being the transfer of convicted persons, international legal assistance in criminal matters and extradition.
The following international agreements are applicable to the transfer of convicted persons:
- Council Framework Decision 2008/909/JHA, 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union;
- European Convention 112 on the Transfer of Sentenced Persons, Strasbourg 1983; and
- Additional Protocol 167 to the European Convention on the Transfer of Sentenced Persons, Strasbourg 1997.
Romania has also signed several bilateral treaties on the transfer of sentenced persons with Egypt, Moldova, Turkey and the Republic of Kazakhstan.
As regards international legal assistance in criminal matters, in terms of white-collar-crimes the following conventions ratified by Romania are of interest:
- Criminal Law Convention on Corruption, Strasbourg 1999 ratified by Law 27/2002;
- Council of Europe Additional Protocol to the Criminal Law Convention on Corruption, Strasbourg 2003 ratified by Law 260/2004;
- Civil Convention on Corruption, Strasbourg 1999 ratified by Law 147/2002; and
- Council of Europe Convention on Cybercrime, Budapest 2001 ratified by Law 64/2004.
Regarding extradition, as a member of the European Union, Romania abides by Council Framework Decision 2002/584/JHA on the European arrest warrant and the surrender procedures between member states. Statements made by certain member states on the adoption of the Framework Decision, as well as the European Convention on Extradition, Paris 1957 and its Additional Protocols are also applicable to white-collar crime.
At the same time, Romania observes and applies the provisions of the United Nations Convention Against Corruption (UNCAC) and those of the United Nations Convention against Transnational Organized Crime (UNTOC).
Romania is part of several bilateral treaties, those regulating extradition and applicable to white-collar crime have been signed with Algeria, Australia, Brazil, Canada, China, North Korea, Cuba, Egypt, Morocco, Mongolia, New Zealand, Syria, The United States of America, Tunisia, Turkey and the Republic of Kazakhstan.
The institution of extradition is internally regulated by Article 19 of the Constitution of Romania, Article 14 PC and by Law 302/2004, as amended and completed by Law 236/2017
Persons situated in the territory of Romania who are prosecuted or arraigned for an alleged criminal offence, or wanted in order to serve a sentence or other criminal court decision in the requesting state, can be extradited from Romania to a foreign state, under the law, at the request of a foreign state.
However, Romanian legislation provides for certain situations when extradition is expressly denied:
- if the right to a fair trial – in the sense of the European Convention on Human Rights – has been breached;
- if there are compelling reasons to believe extradition is requested in order to prosecute or punish a person based on grounds of race, religion, gender, nationality, language, political or ideological beliefs or adherence to a certain social group;
- if a person’s situation is at peril of aggravation for one of the reasons listed in the previous item;
- if the request is formulated in a case file pending before an extraordinary tribunal, other than those constituted by international pertinent instruments, or for the purpose of serving a penalty applied by such tribunal;
- if the request refers to a political crime or to a crime connected to a political crime; or
- if the request refers to a military crime that does not represent a common crime.
The law also provides for certain cases when extradition may be denied:
- if the act that justifies the request is the subject matter of an ongoing criminal trial or when this act may be the subject matter of a criminal case in Romania, or
- if surrender of the requested person may trigger consequences of severe gravity for them, especially due to their age or state of health.
The prosecution of white-collar crimes is commenced as a result of one of the means of notification of the investigation bodies provided by the Romanian law. Article 288 PC provides several listed below:
- a criminal complaint,
- a preceding criminal complaint,
- a denunciation,
- documents issued by other investigation bodies (for instance the minutes concluded by the National Agency for Fiscal Administration), and
- notification ex officio.
2.7 Deferred Prosecution
See the provisions of Article 478 PPC referred to in 2.8 Deferred Prosecution below. The agreement for the admission of guilt is the institution that comes the closest to a deferred prosecution in Romanian law. Still, in this case, the defendant will not be exonerated, but will receive a lesser punishment (reduced by one third).
As such, an institution that matches the exact provisions of DPA or NPA is not provided for by Romanian legislation
2.8 Plea Agreements
Romanian penal procedure presently provides two routes through which the activity within the penal process can be simplified and the defendant can benefit from a milder penalty regimen in these cases.
A first alternative is the simplified procedure provided by Article 375 PPC, which has the following particularities:
- it can be used only in cases where the crime is not punished with life detention;
- it implies the complete admission of guilt by the defendant of indictment;
- it allows only evidence by documents; and
- it grants, as benefit to the defendant, the deduction by one third of penalty limits in prison sentences and by one quarter in the case of fines.
A second alternative is the special procedure for the agreement of the admission of guilt, regulated by Articles 478 et seq of the PPC, which bears the following features:
- it significantly simplifies activity within the criminal pursuit phase, aimed at favouring almost all parties to a criminal trial, but mostly the state, which has the opportunity to save essential pecuniary and human resources;
- it can be used when the penalty provided by the law for an alleged crime is a fine or imprisonment of up to 15 years (most white-collar crimes fit these criteria);
- it grants, as benefit to the defendant, the deduction by one third of penalty limits in prison sentences and by one quarter in the case of fines;
- it is concluded in writing and is subject to prior confirmation by the higher-ranked prosecutor in the body investigating the case; and
- mandatorily, the agreement for the admission of guilt is subject to confirmation by the court, which may admit or reject it.
3. White-Collar Offences
3.1 Criminal Company Law and Corporate Fraud
In Romanian legislation, the activity of legal entities is governed by Law 31/1990, which provides in Title VIII the misdemeanours and crimes that can be committed in connection with their activity.
Thus, as far as corporate white-collar crimes are concerned, they are provided in Articles 271 and 272 of Law 31/1990, namely:
- the founder, director, general manager, manager, member of the supervisory board or of the management board or the legal representative of the company who presents in bad faith, in the prospectuses, reports and statements submitted to the public, untrue facts regarding the setting-up of the company or its economic or legal conditions or hides such data, in bad faith, fully or partially, is punished with prison from six months to three years or a fine;
- the founder, director, general manager, manager, member of the supervisory board or of the management board or the legal representative of the company who presents in bad faith to the shareholders an inexact financial situation or a situation containing inexact data on the economic or legal conditions of the company, for the purpose of concealing its true situation, is punished with prison from six months to three years or a fine;
- the founder, director, general manager, manager, member of the supervisory board or of the management board or the legal representative of the company who refuses to submit to the experts the necessary documents or who, in bad faith, prevents them from carrying out their given duties, is punished with prison from six months to three years or a fine;
- the founder, director, general manager, manager, member of the supervisory board or of the management board or the legal representative of the company who acquires on the account of the company shares of other companies at a price which he is aware is obviously superior to their actual value, or sells on behalf of the company shares that he holds at prices he knows are well under their actual value, for the purpose of obtaining, for himself or for others, any benefits to the company’s detriment is punished with prison from six months to three years or a fine;
- the founder, director, general manager, manager, member of the supervisory board or of the management board or the legal representative of the company who uses, in bad faith, the company’s assets or good standing for a purpose contrary to its interests or to his own benefit or in order to favour another company in which he has direct or indirect interests is punished with prison from six months to three years or a fine;
- the founder, director, general manager, manager, member of the supervisory board or of the management board or the legal representative of the company who borrows, in any form, directly or by an interposed person, from the company he is managing or from a company under its control or from a company which controls the one he is managing, the amount borrowed being over the limit of EUR5,000, or paves the way so that one of these above-mentioned companies grants him any kind of security for his own debts is punished with prison from six months to three years or a fine;
- the founder, director, general manager, manager, member of the supervisory board or of the management council or the legal representative of the company who does not respect the provisions related to the reserve fund of the company is punished with prison from six months to three years or a fine;
Apart from the crimes mentioned above, fraud can also be committed in connection with corporate activity, there being no differences as to the meeting of the constitutive elements compared to other white-collar crimes. As such in order to prosecute the person who committed such an act, the constitutive elements must be met, namely, the objective aspect (the material element, the immediate consequence and the cause-effect relation) and the subjective aspect, which refers to the form of guilt in committing of the crime.
3.2 Bribery, Influence Peddling and Related Offences
Bribery, influence peddling and related offences changed enormously once the new Penal Code came into force (February 2014), and, as such, they are presented in Title V, Chapter I, named “Corruption Crimes”, the lawmaker reserving Articles 289 – 294 PC for elaborating these crimes.
- Taking a bribe – is a crime provided by Article 289 PC having a minimum penalty of imprisonment of three years and a maximum of ten, and is defined as: “the action of the public servant who, directly or indirectly, for themselves or on behalf of others, solicits or receives money or other undue benefits or accepts a promise of money or benefits, in exchange for performing, not performing, speeding up or delaying the performance of an action which falls under purview of their professional duties or with respect to the performance of an action contrary to their professional duties.”
- Giving a bribe – is a crime provided by Article 290 PC having a minimum penalty of imprisonment of two years and a maximum of seven, and is defined as: “the promise, the giving or the offering of money or other benefits in the conditions provided under Article 289.”
- Influence peddling – is a crime provided by Article 291 PC having a minimum penalty of imprisonment of two years and a maximum of seven, and is defined as: “soliciting, receiving or accepting the promise of money or other benefits, directly or indirectly, for oneself or for another, committed by a person who has influence or who alleges that they have influence over a public servant and who promises they will persuade the latter to perform, fail to perform, speed up or delay the performance of an act that falls under the latter’s professional duties or to perform an act contrary to such duties.”
- Buying of influence – is a crime provided by Article 292 PC having a minimum penalty of imprisonment of two years and a maximum of seven, and is defined as: “The promise, the supply or the giving of money or other benefits, for oneself or for another, directly or indirectly, to a person who has influence or who alleges they have influence over a public servant to persuade the latter to perform, fail to perform, speed up or delay the performance of an act that falls under the latter’s professional duties or to perform an act contrary to such duties.”
- Illegal acts committed by members of the courts of arbiters or in connection thereto – is a crime provided by Article 293 PC and is sanctioned just like the giving and the taking of a bribe, regardless of whether the members of the courts of arbitration are Romanians or foreigners, according to the applicable case.
- Illegal acts committed by foreign officials or related to them – is a crime provided by Article 294 PC and stipulates that the corruption crimes provided by this chapter also apply to foreign officials.
From the above-mentioned list one can surmise that the corrupt acts of foreign public officials are criminalised in Romania, but this incrimination is relatively recent, since it was not present in the old Penal code.
As far as the corrupt acts between private persons are concerned, these are not criminalised, unless they are related to public officials, in the sense that, although they do not have a capacity clearly established by a public statute, they perform activity of public interest.
3.3 Anti-bribery Regulation
Presently, the Romanian legal system includes active practices for fighting corrupt acts, the lawmaker emphasising these type of crimes since as early as 2000, when, Law 78/2000 on Prevention, Finding and Sanctioning Corruption Acts came into force.
Also, the lawmaker’s attention to corruption has increased by including some of the corruption crimes in the present Penal code, crimes previously contained by other acts
3.4 Insider Dealing, Market Abuse and Criminal Banking Law
Banking in Romania is regulated by Emergency Ordinance 99/2006 on Credit Institutions and Capital Adequacy, a legal document that also regulates crimes committed in connection with the banking system.
- Article 410 – the disallowed performance by individuals, legal entities or entities without legal capacity, which are not credit institutions, of activities which attract deposits or other repayable funds from the public, or the attracting and/or managing of amounts originating in contributions of members of groups of people constituted in view of accumulating funds and the awarding of loans/credits from such accumulated funds for the acquisition of goods and/or services by its members, as well as the performance of the specific activities of a credit institution without obtaining the legal authorisation is punished by imprisonment of one month to one year or a fine.
- Article 411 – the unauthorised use by an individual of the specific name of a credit institution is punished by imprisonment of one month to one year or a fine.
- Article 412 – hindrance of the National Bank of Romania in exercising its prerogatives of surveillance of credit institutions is punished by imprisonment of three months to two years or a fine.
3.5 Tax Fraud
In Romania, acts of tax fraud are criminalised by Law 241/2005 for Preventing and Fighting Corruption.
As in the case of any other crime, in order to prosecute a person who has committed such an act, all constitutive elements of a crime must be present.
Law 241/2005 provides in Chapter II several ways in which tax evasion crimes can be committed:
- Article 3 – the act of the taxpayer who, with intent or by negligence, does not restore the accounting documents destroyed, within the term set forth in the control documents, is punished with prison from six months to five years;
- Article 4 – unjustified refusal of a person to present the relevant bodies with legal documents and assets, to hinder financial, fiscal or customs search, within 15 days as of the notification, is punished with prison from one to six years.
- Article 5 – hindrance, in any way, of relevant bodies to legally enter headquarters, premises or land, to conduct financial, fiscal or customs searches is punished with prison from one to six years.
- Article 7 para. 1 – holding or circulating, without any right of stamps, banners or forms used in the fiscal field with a special regimen, is punished with prison from one to five years and restriction of some rights;
- Article 7 para. 2 – knowingly printing, using, holding or circulating of falsified stamps, banners or forms, used in the fiscal field with a special regimen, is punished with prison from two to seven years and restriction of some rights;
- Article 8 para. 1 – assessing in bad faith of taxes by the taxpayer, resulting in unlawfully obtaining amounts of money as revenues or restitutions from the consolidated state budget or set-offs owed to the general consolidated budget is punished with prison from three to ten years and restriction of some rights;
- Article 8 para. 2 – association to commit acts provided in paragraph (1) is punished with prison from five to 15 years and restriction of some rights;
- Article 9 para. 1, letter a) – concealing of taxable assets or sources is punished with prison from two to eight years and restriction of some rights;
- Article 9 para. 1, letter b) – omission, in all or in part, of evidence in company’s accounting records or other legal documents of commercial transactions or of incomes is punished with prison from two to eight years and restriction of some rights;
- Article 9 para. 1, letter c) – evidence in accounting records or in other legal documents of expenses that are not based on actual operations or evidence of other fictitious operations is punished with prison from two to eight years and restriction of some rights;
- Article 9 para. 1, letter d) – altering, destroying or concealing of accounting documents, electronic cash machines’ memory drives or other data saving devices is punished with prison from two to eight years and restriction of some rights;
- Article 9 para. 1, letter e) – execution of double accountancy records, using documents or other means of saving data is punished with prison from two to eight years and restriction of some rights;
- Article 9 para. 1, letter f) – evading financial, fiscal or customs searches, by not declaring, fictitious or inexact declaring regarding main or secondary headquarters of investigated persons is punished with prison from two to eight years and restriction of some rights; and
- Article 9 para. 1, letter g) – replacing, degrading or alienation by the debtor to third parties of assets blocked in accordance with the provisions of the Fiscal Procedure Code and of the Penal Procedure Code is punished with prison from two to eight years and restriction of some rights;
3.6 Financial Record Keeping
Crimes related to financial record keeping are included in the tax evasion crimes provided by Law 241/2005 and as regards the proving of these by the relevant authorities, one must prove the existence of the constitutive elements.
These crimes are provided by Law 241/2005 in the following articles:
- Article 3 – any act of the taxpayer who, intently or by negligence, does not restore the accounting documents destroyed, within the term set forth in the control documents;
- Article 9 para. 1, letter b) – omission, in all or in part, of evidencing in the company’s accounting records or other legal documents of commercial transactions closed or of incomes achieved;
- Article 9 para. 1, letter c) – emphasising in the accounting records or in other legal documents of expenses that are not based on actual operations or evidencing of other fictitious operations;
- Article 9 para. 1, letter d) – altering, destroying or concealing accounting documents, electronic cash machines’ memory drives or other data saving devices;
- Article 9 para. 1, letter e) – execution of double accountancy records, using documents or other means of saving data;
3.7 Cartels and Criminal Competition Law
In Romanian legislation, the protection, maintenance and stimulation of competition and of a normal competitive environment, in view of promoting consumers’ interests, is regulated by Competition Law 21/1996, this providing, in Chapter V, distinct penalties in accordance with the type of crime committed (crime or misdemeanour) and in accordance with each act.
The above-mentioned law provides one crime and numerous misdemeanours.
As far as the crime is concerned, it is incriminated in Article 65 of Law 21/1996: the act of any person holding the position of director, legal representative or who performs (in any other way) management duties in a company, to conceive, or to organise, with intent, one of the practices of arrangements between companies, decisions of shareholders of companies and concerted practices, which have as object or result in hindrance, restriction or distortion of competition in the Romanian market or on a part thereof.
The sanction regime for this crime consists of imprisonment of six months to five years, or a criminal fine and the complementary penalty or restraining of some rights.
As far as the misdemeanours are concerned, they are extremely numerous, these being provided starting with Article 53 of Law 21/1996, and being grouped as follows:
- the provision of inexact, incomplete or misleading information or of documents, recordings or evidence in an incomplete form during an ongoing inspection; refusal to submit to the inspection; provisions with intent or by negligence of inexact, incomplete or misleading information or of incomplete documents or not providing the information and documents requested;
- the express breach of the provisions of Law 21/1996, as well as of the provisions of the Treaty on the Functioning of the European Union;
- the failure to notify of an economic concentration;
- the making of an economic concentration in breach of legal provisions;
- the putting into practice of an operation of economic concentration, declared incompatible by a decision of the Competition Council; and
- the failure to implement an obligation, a condition or an action imposed by a legally adopted decision.
The penalty applicable to misdemeanours in Law 21/1996 is a fine and this can be applied in two ways: it can be established between a special minimum and a special maximum (eg, from RON10,000 – 20,000 or from RON20,000 –50,000) or it can be established by applying a percentage of the turnover of the offender (for instance from 0.5% to 10%, or, as the case may be, from 0.1 to 1%) depending on the committed act.
3.8 Consumer Criminal Law
The Romanian Penal Code does not contain a separate section for crimes committed mainly against consumers, but there are crimes whose passive subjects can be consumers:
- fraud – crime provided by Article 244 PC having a minimum penalty of six months or a year and a maximum penalty of three or five years, respectively related to the type of fraud committed (simple or aggravated);
- falsifying or substitution of food and other products – crime provided by Article 357 PC having a minimum penalty of three or six months and a maximum penalty of three or five years, related to the type of crime committed (simple or aggravated); and
- sale of spoiled products – crime provided by Article 358 PC having a minimum penalty of six months or one year and a maximum penalty of three or five years, related to the type of crime committed (simple or aggravated).
Besides the aforementioned crimes, it should be noted that Romanian legislation regarding consumers’ rights is quite ample, consisting mainly of the following legal documents: Ordinance 21/1992, Law 193/2000, Law 363/2007, Emergency Ordinance 50/2010 and Ordinance 52/2016, but these do not regulate crimes, but only misdemeanours.
3.9 Cybercrimes, Computer Fraud and Protection of Company Secrets
Presently, in Romania, the phenomenon of cybercrime is mainly present in the following fields:
- crimes related to electronic commerce which are mainly represented by the acquisition of assets or services on the internet (these being paid for through electronic means used fraudulently) and online selling (the sole purpose being that of deceiving a prospective buyer); and
- crimes regarding computer systems which are represented by attacks against computer systems, which may pursue disruption of the normal functioning of that system.
Presently, cybercrimes are regulated by the Penal Code, since Law 161/2003 was partially abrogated, now providing only misdemeanours regarding cyber activity.
The main crimes regarding computer systems are:
- illegal access to a computer system – crime provided by Article 360 PC having a minimum penalty of three, six or 24 months and a maximum penalty of three, five or seven years respectively, depending on the type of crime committed (simple or aggravated);
- illegal interception of computer data transmissions – crime provided by Article 361 PC having a minimum penalty of one year and a maximum penalty of five years;
- altering of computer data integrity – crime provided by Article 362 PC having a minimum penalty of one year and a maximum penalty of five years;
- disruption of the operation of computer systems – crime provided by Article 363 PC having a minimum penalty of two years and a maximum penalty of seven years;
- unauthorised transfer of computer data – crime provided by Article 364 PC having a minimum penalty of one year and a maximum penalty of seven years; and
- illegal operations with devices or software – crime provided by Article 365 PC having a minimum penalty of six months and a maximum penalty of three years.
It should be noted that the attempt to commit any of these crimes is also illegal.
3.10 Financial/Trade/Customs Sanctions
Romanian customs procedure is regulated by the Customs Code, in force as of 2006, which contains crimes relating to the customs regime, these being provided by Articles 270 to 273:
- Article 270 para. 1 – bringing in or taking out of the country, by any means, goods or merchandise, through other routes than those set forth for customs control, constitutes the crime of contraband and is punished with imprisonment of two to seven years and restriction of some rights and
- Article 270 para. 2, letter. a) – bringing in or taking out of the country, through the venues established for customs control but while evading customs control, goods or merchandise that must be placed under customs regulations, if the value of those assets or merchandise is greater than RON20,000 (in the case of products subject to excise) or greater than RON40,000 (in the case of other goods and merchandise), is punished with imprisonment of two to seven years and restriction of some rights.
It should be noted that the following are also assimilated to contraband: collection, possession, production, takeover, deposit, delivery and sale of goods or assets that must be placed under customs regime, knowing they come from contraband or are meant for committing contraband, the punishment system being the same, namely two to seven years and restriction of some rights.
Also of note are:
- Article 271 – bringing in or taking out of the country (without permission) guns, ammunition, explosive materials, restricted explosive precursors, drugs, nuclear or other radioactive materials, toxic substances and waste or dangerous chemical materials constitutes the crime of qualified contraband and is punished with prison from three to 12 years and restriction of some rights, if the penal law does not set forth a greater penalty.
- Article 272 – using, when dealing with the customs authorities, customs-transportation or commercial documents, which refer to other merchandise or assets or to other quantities of merchandise or goods than those presented at customs constitutes the crime of using false documents and is punished with prison from two to seven years and restriction of some rights.
- Article 273 – using, when dealing with customs authorities, falsified customs-transportation or commercial documents constitutes the crime of using falsified documents and is punished with prison from three to ten years and restriction of some rights.
Concealment is treated, in Romanian law, largely in terms of money laundering and is covered by the provisions of Article 49 para. 1, letter b) of Law 129/2019 on Preventing and Fighting Money Laundering and Financing Terrorism where it is defined as concealment or dissimulation of the true nature, origin, placement, disposition, circulation or ownership of goods, or rights over goods, where it is known that those goods originated from a crime.
First, from the definition of this crime, one can notice that it implies that another main crime has been previously committed (predicate), wherefrom the goods subject to money laundering originate. Without this “assumed situation” existing, the crime committed in concealment cannot be conceived, since it would lack its material object, and namely the goods.
Second, just like in the case of any other crime, in order to prosecute a person who committed such an act, all the constitutive elements of a crime must be present, both the objective aspect (material element, the immediate consequence and the cause-effect relation) and the subjective aspect, which refers to the form of guilt in committing the crime (intention, negligence or exceeded intent).
The applicable penalty is imprisonment of three to ten years.
3.12 Aiding and Abetting
The Romanian legal system provides that a crime may have several participants, in different capacities: author, co-author, instigator and accomplice, out of which two are of interest for our analysis.
When several persons together and directly commit a crime, they are co-authors.
When the activity of one of the participants consists in assisting another person who directly commits the crime, said participant will be an accomplice.
The penalty regime is the same for all participants when they all commit the act with the same form of guilt, the penalty provided by the law for the author.
3.13 Money Laundering
In Romanian legislation, Law 129/2019 sets out the national framework for preventing and fighting against money laundering and financing terrorism, after Law 656/2002 was abrogated.
The following are considered money laundering crimes:
- change or transfer of goods, knowing they come from the committing of crimes, for the purpose of concealing or dissimulation of their illicit origin or to help the person who committed the crime from which the goods originate to evade prosecution, trial or serving a sentence;
- concealment or dissimulation of the true nature, origin, placement, disposition, circulation or ownership of the goods or rights over the goods, knowing the goods originated from a crime; and
- acquiring, holding or using of goods by a person, other than the active subject of the crime from which the goods originated, knowing they come from the committing of a crime.
All of the above are punished with imprisonment from three to ten years.
Each of the methods described above requires the existence of a main crime, from which the goods that are the object of the money laundering originate, this condition being of the essence for the crime of money laundering. Also, in order to prosecute a person who committed such an act, all constitutive elements of a crime must be present.
For the purposes of preventing money laundering, Law 129/2019 established persons and named reporting entities, which have the obligation to report to the National Office for Prevention and Control of Money Laundering, which is the authority charged with co-ordinating the evaluation of money laundering risks in specific cases, particularly where:
- goods come from the committing of crimes or are connected to financing of terrorism;
- the person or its proxy/representative/attorney-in-fact is not who he or she claims to be;
- the information that the reporting entity has may be useful to impose the provisions of this law;
- suspicions are raised concerning the nature, economic purpose or motivation of the transaction;
- cash transactions in Romanian or foreign currency exceed the equivalent of EUR10,000;
- external transfers into and from accounts in Romanian or foreign currency exceed the equivalent of EUR15,000; and
- transfers of funds exceed EUR 2,000.
The relevant authorities to investigate money laundering crimes are judicial bodies (prosecution bodies and courts), the investigation procedure being mostly the one provided by the Penal Procedural Code, the only particularity being that, in these cases, the precautionary measures are mandatory.
In Romania, the practice of white-collar criminal law has grown consistently in the last few years, against the background of increasingly intense activity on the part of the Romanian authorities, especially of the National Agency for Fiscal Administration, which has been generating a significant (and increasing) number of criminal files.
Presently there is a clear tendency for an increasing number of internal investigations to be carried out by parent-companies at their subsidiaries in Romania, which is an encouraging sign, since it proves that, for companies, zero tolerance of criminal policy represents a priority.
This being the case, most companies, in order to defend themselves, have developed policies of internal compliance in relation to all the crimes falling within the white-collar scope, continuously carrying out internal investigations, which require complex legal involvement consisting of:
- establishing and implementing internal policies;
- creating a safe environment for whistle-blower disclosure of information that could trigger an internal investigation;
- establishing the plan of action regarding document analysis, interviews with the targeted employees or those who might disclose additional information, co-ordination or even forensic actions;
- preparation of the report that includes the conclusions and recommendations post-investigation; and
- implementation of post-investigation recommendations.
Romanian legislation provides for no exceptions regarding the meeting of the constituent elements of a crime or the procedure for the investigation and trial of white-collar crimes, with no domains or sectors of activity excepted.
4.3 Co-operation, Self-Disclosure and Leniency
The risks to a company usually appear in relation to the actions of their own representatives or employees, as Romanian legislation provide for the criminal liability of companies for the actions of its representatives or employees, which is why it is essential to firmly dissociate the company from any potential fraudulent acts committed by such persons.
In this regard, in order to avoid the connection between the actions of the company and those of the persons mentioned, the attention of the company should be focused on a few essential priority measures and, should a representative or employee who is guilty of committing a white-collar crime be identified, the immediate notification of the competent judicial bodies is recommended and this may even lead to an exoneration or at least a mitigation of the criminal liability of the company, this conduct being possibly considered as a mitigating circumstance regarding the committed act.
More specifically, the Penal Code provides in Article 75 circumstances that can alleviate criminal liability in the sense of reducing the special limits of the applicable penalty by one third.
4.4 Whistle-blowers’ Protection
An internal policy of the company according to which there is no tolerance towards any criminal acts necessarily implies the implementation of notification channels dedicated to whistle-blowers, as well as the frequent organisation of training programs for awareness of the relevant internal policy within the company.
It is important to mention that such measures do not necessarily guarantee that the company is exonerated from criminal liability, but significantly minimises them.
As for the whistle-blowers, there are no specially regulated procedures for protecting them in Romanian law, though there may be protection measures established by internal rules and policies by companies.
Witnesses within the meaning of the Criminal Procedure Code can benefit from measures ordered by the judicial bodies in order to protect them, measures provided by Articles 126 and 127 CPP, of which we can mention:
- the surveillance and guarding of the witness’s house or the provision of a temporary home;
- accompanying and ensuring the protection of the witness or their family members during travel;
- protection of personal data, by granting a pseudonym with which the witness will sign their statement;
- hearing the witness without him or her being present, by electronic means and with distorted voice and image; and
- non-publicity of the court hearing during the witness’s hearing.
5. Burden of Proof and Assessment of Penalties
5.1 Burden of Proof
In procedures involving white-collar crimes, in the criminal trial, the burden of proof is borne mainly by the prosecutor, and in the civil action, the burden of proof is borne by the civil party bringing a claim, or, as the case may be, by the prosecutor who carries out the civil action in which the victim is without civil capacity or has a restrained civil capacity.
Thus, just like in other legal systems, the suspect or the accused benefit from the presumption of innocence and are not forced to prove their innocence and have the right not to contribute to their own accusation.
As far as the standard each piece of evidence must meet, the penal procedural law establishes the principle of loyalty of the evidence, based on which it is forbidden to use violence, threats or other means of constraint, also establishing that the evidence does not have a pre-set value by the law, as this can be freely considered by the judicial body.
5.2 Assessment of Penalties
A defendant deemed guilty of a crime, be it a white-collar crime or any other, will face a penalty assessed by the court within the special limits set forth by the law (between the minimum and the maximum). The court will drive the penalty towards the minimum or the maximum based on the particular circumstances surrounding the crime (such as the amount of damage caused or whether there were mitigating or aggravating circumstances) and the personal circumstances of the defendant (such as prior criminal activity, their behaviour after the committing of the crime, during the investigations or their social environment ).
Observations made hereinabove concerning the situation of a defendant in the event of a deferred prosecution agreement, non-prosecution agreement or plea agreement shall apply in the sentencing process accordingly.