Corina Badea Counsellor

1. Confiscation of assets: the relationship between administrative control and criminal investigation bodies Corina Badea Counsellor Department for the relation with the Public Ministry, Prevention of Criminality and Corruption Romanian Ministry of Justice

2. The National Integrity Agency • Romania: 1st country to establish a specialised agency for the control of: • Assets obtained during the exercise of a public function • Potential conflicts of interest • Incompatibilities • Financial and interest disclosure systems

3. Illicit enrichment/unexplained wealth • Confiscation as a measure of criminal law • Targeting proceeds of crime • Cutting off profits • Criminal liability • Confiscation as a means of administrative law • Increasing integrity of the public service • Essentially a preventive character (Welch v UK)

4. Confiscation under international criminal law • 1988 United Nations Convention againstthe Illicit Traffic of Narcotic Drugs and Psychotropic Substances (the Vienna Convention) • 2001 United Convention against Transnational Organized Crime (the Palermo Convention) • 2003 The United Nations Convention against Corruption • 1999 CoE Criminal Law Convention on Corruption • Council Framework Decision 2005/212/JHA

5. Confiscation under administrative law • confiscation of assets obtained during the exercise of a public function and which cannot be accounted for as a means to increase accountability of public officials and the overall integrity of the public service • The duty for public officials to submit their financial situation in advance is part of a substantive foundation of the rule of law, as it is the requirement to justify public decisions and to act according to the principle of impartiality.

6. Control of assets: evolution of the Romanian legal framework • Law 18/1968 on the control of the origin of assets belonging to natural persons, which have not been acquired in a licit manner • special investigation commission • Law 115/1996 on the declaration and control of the wealth of the dignitaries, magistrates, civil servants and of certain persons with management positionsspecial investigation commissions • Law 144/2007 on the organization and functioning of the National Integrity Agency • the National Integrity Agency.

7. Law 18/1968: protecting socialist equity • The law introduced a 2 stage control of assets: • the investigatory stage by special commissions (magistrates + civil servants + workers) • the judicial stage • The investigatory stage – presumption of illicit acquirement of goods

8. Law 115/1996: Limited public accountability • Decentralised financial disclosure system • 2 stage control of assets: • special investigation commissions • judicial stage

9. Greco Evaluation Team - October 2005 • Law 115/86 system not effective, inter alia, due to: the absence of a preliminary independent administrative review of these declarations in order to identify actual or apparent violations of the law, unjustified fluctuations in the public officials' financial situation, conflicts of interests, incompatibilities and prohibited gifts. Lastly, there is also no appropriate system for verifying declarations of interest.

10. The National Integrity Agency • Independent administrative authority operating at national level • operational independence: the president, vice-president and the integrity inspectors shall not request nor receive orders on the verification procedure from any public authority, institution or person • President • selected by open competition, formally appointed in office by the Senate • Can be removed from office only on the basis of an independent external audit report • Its activity is supervised by the National Integrity Council, which presents the Senate a yearly activity report.

11. NIA vs special investigation commissions • proactive – is expected to constantly monitor statements of wealth and interest, can start control ex officio • Develops expertise, data and techniques • Equal treatment for all public officials • Saves money and resources

12. Control of assets by NIA • Ex officio / upon notification • Preliminary verification – of the notification, declarations, additional information by the verified person. • Obvious difference between assets and revenues: no less than 10 000 euros • If the control ascertains the difference is unjustified, the inspectors notify the court requesting confiscation

13. NIA Investigative Powers • unconditional access, under the law, to any data, information, acts or documents they deem necessary for fulfilling their duties from any public institution or private legal person, including those of financial, fiscal, banking, personal, confidential or classified nature, in compliance with the legal requirements for their processing. • Non compliance with this obligation by heads of public institutions or private legal persons entails the application of a daily fine. • Expert report, with the assent of the verified person • Procedural guarantees: right to be informed about the investigation, to be assisted by a lawyer, to produce evidence

14. NIA investigation • Acts and works made during the investigation procedure are not public (with the exception of the ascertaining report) • The inspectors suspend the investigation if they find evidence or clues that a criminal offence has been committed. They notify the criminal investigation bodies. • Acts drawn up in the investigation stage can be used as means of evidence in judicial proceedings, in accordance with the law

15. The advantages of the NIA system • Overcomes the difficulties in meeting the burden of proof in criminal law. Unjustified assets, not illicit. • Pro-active fact finder. Saves time and resources of prosecutors. • Preventive not punitive: increase the citizens trust in their government. Protects honest officials. • asset disclosure systems: lessen the threat to civil liberties and abuse of criminal investigation instruments

16. THANK YOU corina.badea@just.ro