Association of the
Secretaries General of Parliaments
Geneva, 18-21 October,
2015
General Debate: Conflict prevention in parliament
Contribution by Mrs.
Cristina Ionescu,
Deputy Secretary General
Senate of Romania
In Romania’s case the entire legislative and institutional
framework regulating the incompatibilities and the conflict of interests
reflects the country’s answers to the requirements related to the accession to
the European Union and NATO, objectives successfully fulfilled in 2004 and
2007, respectively, as well as the determination of the political class and the
whole Romanian society to build effective and accountable institutions after
the falling of the communist dictatorship, for a successful transition to
democracy.
The EU Anticorruption Report dated February 2014[1]
shows that our country has most of the necessary mechanisms in place to
prevent, discover and punish corruption and conflict of interest and while
much work still needs to be done to ensure the continuity of this
positive track record, Romania is in a better position than other
countries in Europe that are still defining their legal framework
regulating the conflict of interest and are still debating on the public
character of the wealth declarations.
Within
this general context, I will submit to your attention the main answers offered
by the Romanian legislative and institutional framework to the themes proposed by
our Association, while underlining its specificity shaped, as mentioned before,
by both the obligations assumed by Romania for the periods of
pre/post-integration and the legitimate requests of the civil society,
demanding, especially from its elected representatives, adequate assurances of
moral integrity and good-faith.
The
conflict of interest is regulated in Romania by organic law, on the basis of the
general incompatibilities of the parliamentary mandate as established by the
Constitution[2] „No one may be a Deputy and a Senator
at one and the same time” and “The capacity as a Deputy or Senator is
incompatible with the exercise of any public office in authority, with the
exception of Government membership”.
Basically, the institution of incompatibility represents the
mechanism aimed at protecting the independence of the parliamentary mandate, as
well as our response to the obligation of preventing conflict of interests,
which may occur during the exercise of public offices and functions, all these
in full compliance with the principles of neutrality, integrity, transparency
of decision-making, and the supremacy of public interest.
Therefore, according to the legislation in force[3],
a Deputy’s or a
Senator’s capacity is also incompatible with the following positions:
a) the capacity as Member of the European Parliament;
b)
president,
vice-president, general manager, director, administrator, member of the board
or auditor of trade companies, including the banks or other credit institutions, insurance
companies and financial services, as well as public institutions;
c)
president or secretary of the general
meetings of shareholders or associates in the companies mentioned in paragraph
b);
d)
State representative in
the general meetings of the companies mentioned in paragraph b);
e)
manager or member of the
administration board of autonomous administrations, national companies and
enterprises;
f)
member of a group of economic
interest;
g)
a public office entrusted by a foreign State, except
those mentioned in the agreements and conventions to which Romania is a party;
h)
president, vice-president, secretary and treasurer of union
federations and confederations.
i)
the positions and
activities of persons who, according to their status, have not the legal
permission to belong to political parties[4]
The capacity as a Deputy or Senator is compatible
with activities performed in didactic, literary and artistic domains, or in
scientific research.
At this point, I would like to draw your attention to the most
relevant aspects of the Romanian legislation and institutions in charge to
deal with wealth and interest declarations and their control. I will go
into some details.
Declarations
of wealth and interests were introduced for the first time in Romania in 1996; the process became more transparent beginning with
2003, when the public institutions were compelled to upload these documents on
their websites; and in 2007, an authority in charge to verify their veracity
was set up.
At
present, the following persons are required to declare their interests and
assets: civil servants, political appointees, elected officials,
candidates running for: Presidency of Romania, Parliament of Romania,
European Parliament, County and Local councils, the position of Mayor etc.,
totalizing more than 300.000 people.
Other
aspects that deserve to be
considered are:
Ø The wealth declaration filled in by each and every Romanian MP includes
information about the person declaring assets,
but also about her/his family[5] (real estate - lands,
buildings-; movables - cars, boats, yachts, jewelleries, art collections,
numismatic objects etc.; financial assets; debts; incomes.
Ø The interest declaration form comprises information
about paid or unpaid
professional activities, positions of associated or shareholder in commercial
companies/national companies including banks or other loan institutions etc.
Ø The declarations filled in by MPs personally, in writing, on their
own responsibility, are dated, signed by own hand and are submitted to the
General Secretariat of the Senate/ Chamber of Deputies which issues a receipt.
Ø MPs are obliged to complete/update their wealth and
interests declarations: at the validation of the parliamentary mandate; during
the four years term of office – annually, no later than June 15 - ; and no
later than 30 days after the date of the termination of mandate.
Ø The declarations record is kept in a special registry, at
the office of the Secretary General of the Senate/Chamber of Deputies.
Following their submission, the declarations are posted on the website of the
Senate/Chamber of Deputies and are sent, in certified form, to the National
Integrity Agency.
In what concerns the National Integrity Agency (NIA),
taking into account that only a very few States have similar institutions, I
will provide some details.
NIA was established in 2007 by law[6],
on the recommendation of the European Union and the Group of States against
Corruption of the Council of Europe (GRECO), as autonomous administrative
authority, with legal personality, which operates at national level and is
financed from the State budget.
Its main role is to handle
the system of wealth and interests declarations in Romania, to perform in a unitary and institutionalized manner the
control of wealth, to identify and to discourage the situations of
incompatibility /conflict of interests/ corruption in the public administration
and to notify, in the cases of violations of the law, the disciplinary
commissions of the respective public institutions, the Commissions in charge to
investigate illicit wealth from the Courts of Appeal, the Public Prosecutors
Offices, the Law Courts etc.
At present, an Integrated Management Information System allows any
interested person to consult the declarations of wealth/interests posted on
ANI’s portal - http://declaraţii.integritate.eu
- , which contains more than 5.200.000 documents, submitted from 2008 to 2015.
The procedures to declare incompatibilities /conflict of interests are established
according to the Constitution – which stipulates that capacity as Deputy and
Senator shall cease in case of incompatibility- , by the Law on the Statute of
Deputies and Senators and by the Standing Orders of the Senate/Chamber of
Deputies.
Any evaluation report drafted by the National Integrity Agency,
which reveals a situation of conflict of interests
shall be transmitted, within 5 days since its completion, to the Senator or
Deputy concerned and to the Chamber to which he/she belongs.
If
the MP does not contest the report at the Administrative Court within the legal
time limit, she/he is in conflict of interest, situation leading to the
termination of the parliamentary mandate.
If NIA’s evaluation report indicates the existence of an incompatibility
situation, the Deputy or Senator has the obligation to choose, within the
next 30 days, between the capacity as a Deputy or Senator and the incompatible
position /positions. The Deputy or the Senator who has not expressed his option, remains in
a state of incompatibility until a draft project of observation of the
incompatibility situation and of termination of the parliamentary mandate is
submitted to the approval by the Standing Bureau of the Senate / Chamber of
Deputies and by the plenary of the Chamber to which he/she belongs. The Decision of the
Chamber is published in the Official Gazette of Romania.
Furthermore,
Romania has incriminated “the conflict of interests” as a criminal offence in
the new Criminal Code,
in force from February 2014.
In what concerns the gifts received by MPs
on the occasion of their participation at different parliamentary activities, I would like
mention two complementary legal obligations of the Romanian parliamentarians. MPs are required to declare:
Ø the gifts
received in the exercise of their function in the Senate/ Chamber of Deputies,
within 30 days after receipt (exempted items: medals, decorations, office items
etc.)
The objects are evaluated and inventoried by a committee of the Senate
/Chamber of Deputies. In cases where the committee determines that an object
values less than 200 Euro, this may be kept by the respective MP. In case the
committee establishes that the value exceeds 200 euro, the respective object:
o
may be kept by the Senator/Deputy if he accepts to pay for the difference of
value.
o
may be included in the patrimony of the institution, may be offered to another
public institution or maybe is sold by auction.
At the end of each year, a situation of received gifts is published on the
website
of the Senate/Chamber of Deputies.
Ø the gifts received, the free of
charge services or advantages received or those whose value is smaller than the
market value, those received from other sources than the employer and have a
value higher than 500 EURO (Chapter VI of the Declaration on wealth).
The
next aspect I would like to consider refers to the limits to a Senator right to be
spokesperson in parliament on matters concerning personal interests.
This issue is regulated by the Law
on the Statute of Deputies and Senators and by the Standing Orders of the
Senate: “It shall be prohibited the use of a person’s
name with a mention of that person’s capacity as Deputy
or Senator in any advertising action concerning any company regulated by law[7], financial or
industrial or other similar companies with a lucrative purpose.”
Finally,
I will mention that there are no legal provisions banning the participation
of a Romanian MP in a vote on a matter that concerns his/her personal
interests.
Although
Law 96/2006 on the Statute of Deputies and Senators stipulates that MPs, in their capacity as
elected representatives of the Romanian people, fulfill their duties and
exercise their rights according to the Constitution, the national laws and the
Standing Orders of the Senate/Chamber of Deputies and, throughout their entire
term of office.
Concurrently,
MPs are forbidden to
undertake financial obligations or other type of obligations towards natural or
legal persons, which are meant to influence the exercise of the mandate in good
faith, according to their conscience.
Thank
you for your attention.
[1] Report from the Commission to the
Council and the European Parliament: EU
Anti-Corruption Report.
[2] The Constitution
of Romania amended and supplemented in 2003, by the Law 429/2003 for the
revision of the Constitution of Romania, adopted by Parliament and approved by
national referendum.
[3] Law No. 161/2003 on certain
measures to ensure transparency in the exercise of public dignities, of public
functions and in the business environment, the prevention and punishment of
corruption, with the subsequent amendments and completions, Law 96/2006 on the Statute of Deputies
and Senators and the Standing Orders of the Senate/Chamber of Deputies
[4] The provisions do not apply to the representatives of the citizen’s
organizations belonging to the national minorities, which have an interdiction
to belong to political parties in their own statutes.
[5] Spouse, dependent children and, for the co-property goods,
the co-owners.