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CENTRE OF EXPERTISE IN JUDICIARY @ TRANSPARENCY INTERNATIONAL ROMANIA

26

MERIT TEST

This phase is dedicated to matching the alleged facts with the applicable legal provisions to make an

initial determination as to the commission of a crime. By the end of the inspection of a case, each

of the facts presented will get a legal meaning and the respective legal treatment applicable will be

determined

.

GAPS AND loopholes

Limits of the legal texts, which prevent real

facts from being legally qualified (lack of

up-dated legislation in accordance with the

actual corruption practices)

Restrictive legal requirements regarding

the gathering of evidence or proof relating

to corruption crimes (i.e. to be charged with

corruption, the defendant must be caught

in the act of committing the alleged offence

ie

bribery-

in flagrante delicto

)

Lack of common understanding and

equal treatment of corruption cases and

procedural requirements

Discretionary power regarding the solutions

adopted

Limited accountability for the solutions

adopted

Reccomendations to

counter THEM

Clear definitions of corruption crimes,

corruption related crimes and jurisdictional

abilities

Un-fragmented judicial practice regarding

the admissibility of evidence in corruption

cases.

Legal obligation for judicial decision

makers to provide complete explanation of

decision. Sentencing guidelines should be

drawn up.

The possibility for appeal against / review

of the dismissal / rejection first decision of

the case – before it becomes final

The possibility for public interest litigants,

such as NGOs to challenge dismissal/

rejection decisions

Appropriate and long statute of limitations

Inapplicability of the opportunity principle in

cases of corruption