Mr. President of the Chamber of Deputies
Mr. President of the Senate
Ladies and Gentlemen Deputies and Senators
1. The year 2004, to which this report refers, represented for the institution of the People’s Advocate a year in which the constitutional and legal measures enabling its functioning as an autonomous and independent state institution were accomplished.
On the basis of the constitutional provisions, revised in 2003, the Parliament modified the law no 35/1997 on the organization and functioning of the People’s Advocate, and the Permanent Parliamentary Offices approved the modifications brought to the Statute of the institution. For the implementation of the new constitutional and legal provisions, the People’s Advocate deputies specializing on various fields were appointed (for the present moment, only two of the four), the personnel of the institution was legally assimilated with the parliamentary personnel, another two territorial offices (in Braşov and Constanţa) were established, and such actions will continue in 2005. As regards the new rules related to the People’s Advocate tasks in monitoring the constitutionality of the laws, we specify that the Constitutional Court was appealed with a view to an objection of unconstitutionality to the law on administrative procedures. Although the unconstitutionality objection was rejected by the Court, with the majority of the votes cast, we believe that the problem remains under debate.
Certainly, we have continued to draft opinions in respect of unconstitutionality cases relating to human rights. In 2004, we drafted 621 points of view.
The efforts were further on developed with a view to harmonizing the European regulations in the field of the personal data protection. After long-lasting consultations and debates, including with the authorities in Brussels, these efforts concretized on a draft law regarding the establishment, organization and functioning of the National Supervision Authority for Personal Data Processing.
We believe that the Parliament will support, as usual, these efforts of legislative, organizational and functional strengthening of the institution.
2. As concerns the volume of work, it can be estimated to express a quantitative increase, but also a qualitative increase compared to the previous year.
Therefore: we received 5971 citizens in audience, 4621 complaints, 2305 notifications at the reception desk; we conducted 38 investigations; we drafted 8 recommendations and 2 special reports were submitted to the Chamber of Deputies and Senate.
In the year 2004, the institution acted on two large directions: a) the current resolution of the complaints and requests; b) the involvement in solving some problems that referred to large segments or groups of people.
In the second direction, we are involved and we can state that we have efficiently supported: resolution of sensitive issues regarding the repairs which the state owes to the persons that performed a forced labor within 1950-1960; clarification of the problems related to the Romanian citizens working in Spain; resolution of certain requests relating to the enforcement of the Law no 9/1998 on the granting of compensations to Romanian citizens for the assets that passed under the ownership of the Bulgarian State as a result of the enforcement of the Treaty concluded between Romania and Bulgaria (Craiova, September 7, 1940).
Special attention is granted to the fulfillment of the supervision tasks in the field of the personal data processing, which means actually the protection of family, intimate and private life.
We have to notify the Romanian Parliament that, although by the law no 677/2001 the People’s Advocate was declared as the national supervision authority in this field, the executive authorities have not made available human and financial means that are necessary for such an activity. Therefore, the efforts and the achievements in this field were carried out by the “common” personnel of the institution that forms a particular department. The figures specified in the report express without any doubt, a large volume of work. This notification is of great use as in the program of integration in the European Union structures, the massive part refers to the protection of personal data. It is also the reason for which we request the Parliament to support the promptness of the adoption of the draft law that is already submitted to the Chamber of Deputies.
3. The issue of efficiency with regard to the People’s Advocate activity was naturally raised. As any ombudsman-type institution, the Romanian People’s Advocate tries to solve the conflict between the citizens and the administrative authorities by mediation, requesting the reconsideration of the solution. The efficiency of such work method is directly proportionally with the professional quality and degree of openness of the persons involved. The Ombudsman has no means of constraint (fines, cancellation of documents, etc.) If it had such means available, it would not be anymore an ombudsman-type institution. Its efficiency may be compared to the mass-media efficiency. As a matter of fact, both at the level of the European Ombudsman and the general ombudsmen the problems are raised on the same grounds.
The efficiency of the institution depends to a great extent on its advertising by means of media. In this respect, although progresses were made, we cannot speak yet of particular achievements, as the means available to the institution are still limited.
4. The level of citizen and public awareness with regard to the institution has increased. The contacts between the citizens and the institution developed, if we consider all the actions that were carried out. As concerns the equation of institution / public authorities, we must show that, in 2004 as well, we received special support from the Romanian Parliament. The public administration authorities became more receptive particularly as the institution carried out more often investigations and drafted recommendations. A great cooperation was achieved in the field of constitutionality review of laws, which is clearly expresses through the large number of opinions addressed to the Constitutional Court.
5. In the year 2004, the exchange of experience and cooperation with similar foreign institutions continued. We specify particularly the visit of the European Ombudsman, the visit of the Public Defender of Spain, the exchange of experience with the specialists of the Dutch Ombudsman, the visit of the Petition Commission of the German Bundestag.
6. The volume of activity outlined in this report shows, without any doubt, the increased capacity of the People’s Advocate and it enables us to hope that we will be able to ensure more efficiently the protection of the individuals’ rights and freedoms in 2005.
Mr. Ioan Muraru Ph. D.
People’s Advocate
Chapter 1.
Strengthening the institution – legal, organizational and functional changes
1.1.
The new legal framework for the
organization and operation of the institution
Constitutional and legal
changes in 2003 and 2004 favored the institutional strengthening of the
People’s Advocate, in the exercise of its powers as defender of individuals’
rights and freedoms.
The Constitution, revised
in 2003, has brought significant organization and functional enhancement. Thus,
the appointment of the People’s Advocate is made in joint meeting of the
Chamber of Deputies and the Senate, for a 5-year mandate, instead of a 4-year
mandate. Even the Constitution has set out that, in order to fulfill its
constitutional powers, the People’s Advocate shall be assisted by deputies
specialized on certain fields of activity, which leads to an increased
efficiency of the institution’s activity, and to the conformity with the laws
of other states, where ombudsmen operate.
In addition, powers involving the People’s
Advocate in the process of constitutional justice enforced by the
Following the revision of the Romanian
Constitution, the Law no. 35/1997 on the organization and functioning of the
People’s Advocate, was amended and completed by Law no. 233/2004.
The Regulations for the organization and
functioning of the People’s Advocate were also amended, aiming at harmonizing
them with the new legal and constitutional regulations.
According to the new legal provisions, the
deputies of the People’s Advocate perform their duties in the following fields:
a) human rights, equality of
chances between men and women, religious cults and national minorities;
b) the rights of
children, family, youth, retired and disabled persons;
c) military service, justice, law enforcement,
penitentiaries;
d) property, labor, social security, taxes.
With a view to fulfilling
its powers according to the law and easing citizens’ access to the institution,
the People’s Advocate establishes territorial offices.
Another legislative
novelty is represented by the assimilation of the institution’s personnel with
the personnel of the Parliament’s specialized structures.
One has to notice that,
according to the new legal provisions, through annual budgetary laws, a fund
may be approved at the People’s Advocate disposal, in order to
provide support to persons coming from the country to Bucharest institution’s
head office, requesting support for the protection of their rights and freedoms
and who are facing material difficulties (retired old persons with very low
pensions, disabled persons with very low incomes).
Recently,
The Romanian Parliament has passed the Law no. 554/2004
on administrative procedure, which sets forth the powers of the People’s
Advocate relating to the notification of the administrative courts of law. On
the grounds of these legal provisions, the People’s Advocate, after conducting
a survey, according to the organic law, on the basis of a complaint submitted
by an individual, if it considers that the illegality of the act and the excess
of power by the administrative authority cannot be removed other than by the
interference of a court of law, may notify the competent administrative court
having jurisdiction at the complainant’s residence. The complainants obtain by law the capacity
of plaintiff and they will be summoned in this capacity.
1.2. Establishment of new
territorial offices in
In 2004, two territorial offices of the
People’s Advocate, one in
1.3. Organization and personnel of
the People’s Advocate
The amendments and completions to the Law no.
35/1997 are reflected in the institution’s organization chart. The People’s
Advocate is assisted by deputies specialized on four fields of activity. The
Secretary General coordinates the institution’s economic and administrative
activity. The consultative board is formed of the People’s Advocate, his
deputies and counselors, the secretary general, as well as other persons
appointed through the People’s Advocate order.
The Department for the protection of
individuals with regard to personal data processing is part of the People’s
Advocate institution.
The specialized executive staff is formed of
experts and counselors. The personnel chart of the institution includes 96
positions.
1.4.
Promotion and training of personnel
In 2004, contests aimed at filling the
vacancies within the institution were organized according to the legal
provisions. Specialized experts and counselors were selected. The promotion of
the institution’s specialized personnel was based on criteria such as:
professionalism, loyalty, correctness and promptitude in performing their
tasks.
Through the Resolution no. 2 of September 22nd,
2004 of the Standing Bureaus of the Chamber of Deputies and Senate, at the
proposal of the People’s Advocate’s and with the advice of the Legal Committees
of the two Parliament Chambers, two deputies of the People’s Advocate were
appointed.
In order to improve the personnel’s professional
training, the institution organized, on a monthly basis, seminars and debates
on specific topics.
The experts of the People’s Advocate experts
attended professional trainings in the field of human rights protection, held
by Raoul Wallenberg Institute in Sweden
and the Sweden International Agency for Development (Simina Popescu, expert and
Denisa Ionea, expert). These workshops contributed to a better knowledge of the
international issues relating to human rights protection and international
legal instruments applicable thereto.
In addition, in 2004, the counselors and experts of the
People’s Advocate attended reunions, public debates and meetings referring to
the protection of the individuals’ rights and freedoms. The scientific workshop
“The Citizen and the Press” held by the People’s Advocate in cooperation with
the Law Faculty of the
1.5.
Working conditions
In 2004, the People’s Advocate carried out its
activity at the head office in Str. Eugeniu Carada no. 3, as well as at the
territorial offices across the country. The working conditions were improved by
providing the technical equipment necessary to a proper carrying out of the
activity. Subsequently, the quality of the works performed by the institution’s
counselors and experts increased in terms of shape, quickness and efficiency.
In order to allow the carrying out of internal
training workshops and the organization of conferences and symposiums, a
suitable location was arranged and equipped with the appropriate office
furniture. The location hosts also the institution’s information point where
the employees may read specialized books and publications.
Chapter 2. The People’s Advocate activity per
area of expertise
2.1.
General volume of activity
a) Settlement of complaints
In 2004, the People’s Advocate and its
territorial offices registered 4621
complaints submitted by individuals from
b) Activity carried out during hearings
In 2004, the
People’s Advocate and its territorial offices held 5971 hearings during which violations of the individuals’ rights were
invoked and 575 complaints were retained for settlement (Annex no. 1).
c)
Answering telephone requests
Individuals, mainly those residing far from the institution’s
head office and individuals not able to travel contacted the institution by
telephone. 1956 telephone calls were answered at the reception desk. 349 telephone calls were received at the territorial offices. Overall, 2305 telephone calls were received (Annex no. 1)
d)
Subject of the complaints submitted to the People’s Advocate
The complaints submitted to the People’s Advocate referred
to violations of citizens’ rights and freedoms, as well as to abuses by public
authorities. The complaints were examined according to the People’s Advocate
areas of expertise (Annex no 2).
e)
Comparative analysis on the percentage of complaints per area of expertise
The overall number of complaints relating to
the violation of individuals’ rights or freedoms was 4621. In the field of human rights, equality of chances between men
and women, religious cults and national minorities, 36.74% complaints were received. 30.55% complaints referred to property, labor, social security,
taxes and income taxes. In the field of the rights of children, family, youth,
retired and disabled persons, 20.21%
complaints were received, while in the field of military service, justice,
police and penitentiaries, 12.5%
complaints were received.
f)
Activity relating to the individuals’ protection with regard to personal data
processing
In 2004, 1341 individuals and legal persons registered with the People’s
Advocate as personal data controllers (Annex no. 1). In the same field, 1079 notifications regarding personal
data processing were drafted and 943
advice were made to personal data controllers. (Annex no. 1).
g) The
People’s Advocate activity with regard to the constitutional review of laws and
ordinances
In 2004, 621 opinions with
regard to exceptions of unconstitutionality of laws and ordinances referring to
individuals’ rights and freedoms were communicated to the
h)
Activity carried out for the information of citizens with regard to the
protection of the individuals’ rights and freedoms and for media awareness in
respect of the People’s Advocate role
The People’s Advocate is well aware of the fact
that the key aspect of its activity is the information of individuals with
regard to their rights and freedoms, including to right to submit complaints to
the People’s Advocate.
In 2004, the activity of informing the citizens
and the media continued, mainly through the increase of contacts with the mass
media interested in legal and human rights issues.
For a better understanding of the People’s
Advocate role and powers, a presentation
leaflet and an information bulletin
on the institution’s activity and with regard to the cases resolved through the
intervention of the People’s Advocate were published on the institution’s
expenses. These information materials were distributed free of charge to
individuals and local and central public administration authorities
(ministries, prefectures, county councils and local administrations).
Some efficient media awareness methods are, in
our opinion, radio and television channels. Therefore, in 2004, the cooperation
with the Romanian Company of the Radio-Broadcasting continued, the People’s
Advocate representatives attended on a regular basis the radio broadcast
“Audience with the People’s Advocate”.
2.2. The People’s Advocate procedures and specific means of
action
The People’s Advocate’s main goal is to
ensure the efficiency of its actions aimed at resolving the complaints. The
People’s Advocate procedures and specific means of actions are therefore
essential.
In 2004, 38 inquiries were conducted (Annex no.
7):
·
13 inquiries for the examination of the enforcement of the legal
provisions regarding the right to private property, right to work and social
security were conducted at the local municipalities of sector 3 and 4 -
Bucharest, Bucharest Municipality, the prefecture of Dâmboviţa; the local
municipality of Constanţa; Constanţa prefecture; Bucharest thermal
power supply company, the Ministry of Foreign Affairs, Bucharest Labor
Inspection, The Ministry of Labor, Social Solidarity and Family, The Office for
the Migration of Workforce.
·
10 inquiries regarding possible violations of the right to information,
right to petition, the right of the persons aggrieved by a public authority,
were conducted at: local councils, local tax and income tax services, financial
administrations, unemployment offices, services for children’s protection and
postal offices of sectors 1 – 6,
Bucharest municipality, the national house of pensions and other social
security rights, the prosecutor’s office by the Tribunal of Bucharest, the
prosecutor’s office by the Higher Court of Cassation and Justice, Police
Station 22 of sector 6 Bucharest, Police Station 11 of sector 3 Bucharest; Road
Police Department of Bucharest, Alba-Iulia municipality; the Ministry of Public
Finance.
·
9 inquiries regarding
the observance of the retired persons’ rights were conducted at: The Ministry
of Foreign Affairs, The National House of Pensions and other Social Security
Rights, the Pension House in
·
2 inquiries referring
to the observance of the detention conditions were conducted at Giurgiu
Penitentiary and Maximum Security Penitentiary in Bucharest-Rahova.
·
1 inquiry was
conducted at the Police Inspectorate of Gorj County regarding the detention
conditions in the police arrest.
·
2 inquiries with
regard to the observance of the right to protection of disabled persons were
conducted at the Ministry of Transportation, Construction and Tourism and at
the local administration of Bereşti-Bistriţa commune,
·
1 inquiry with
regard to the observance of the right to health care was conducted at the
Hospital no. 9 „Dr. Obregia”.
In addition, in 2004 8 draft recommendations were made (Annex no. 8):
·
3 recommendations to the Ministry of National Defense, to the National
Archives, The Ministry of Labor, Social Solidarity and Family for the
enforcement of the Law no. 309/2002 regarding the recognition and granting of
rights to persons having performed military service with the General Direction
of Labor Service within 1950-1961, amended and completed;
·
1 recommendation to the Ministry of Public Finance referring to the
enforcement of the provisions of Law no.
9/1998 regarding the granting of compensations to Romanian citizens for
the assets passed in the property of the Bulgarian State following the
enforcement of the Treaty between Romania and Bulgaria, signed in Craiova on
September 7th 1940;
·
2 recommendations to Bucharest municipality with regard to the enforcement of
the Law no. 10/2001 regarding the legal status of real estates abusively taken
by the state within March 6th
1945 –
December 22nd 1989;
·
1 recommendation to the local municipality of sector 6, referring to the
enforcement of the Government Emergency Ordinance no. 5/2003 on the granting of subsidies for the
heating of dwelling houses, as well as of other facilities granted to the
population for the payment of the thermal power supply.
·
1 recommendation to Alba-Iulia municipality with regard to the observance of
the individuals’ right to petition.
In exercising its powers, the People’s Advocate drafted in 2004 two special reports referring to the
enforcement of the Law no. 309/2002 on
the recognition and granting of rights to the individuals having performed
military service with the General Direction of the Labor Service within
1950-1961, amended and completed, and to the protection of the Romanian
citizens working abroad.
These special reports were submitted to the Chamber of Deputies and to
the Senate.
2.3.
Human rights, equality of chances between men and women, religious cults and
national minorities
In 2004, 33 complaints referring to an alleged
violation of the equality of citizens’ rights were received. The small number
of such complaints may show a decrease in the number of cases relating to discrimination.
In addition, statistic data referring to the number of complaints in which the
People’s Advocate was notified of discrimination shows a possible increase of
the citizens’ addressability toward the National Council for Combating
Discrimination, as specialized body of the central public administration,
subordinated to the Government, having responsibility in the implementation of
the equality among citizens, finding and sanctioning contraventions provided
for by the Government Ordinance no. 137/2000, further amended and completed, on the prevention and sanctioning of all
forms of discrimination.
B. The right to free movement (art. 25 of the
Constitution)
In 2004, the People’s
Advocate received 17 complaints regarding an alleged
violation of the right to free movement.
From the analysis of the complaints referring
to alleged violations of art 25 of the Romanian Constitution, it came out that
the People’s Advocate was repeatedly notified with regard to the orders given
by the Authority on Foreigners’ Issues referring to the conditions in which
persons may leave the Romanian territory. The People’s Advocate advised the
complainants to address to the competent public authorities for the settlement
of contestations regarding the orders to leave the territory.
Support was requested to the People’s Advocate
also for the granting of the refugee status in
In addition, the People’s Advocate was notified
of the maladministration in relation to the issuance of a passport by the
Passport Direction within the Ministry of Administration and Home Affairs.
CASE STUDY – case resolved through the intervention of the
People’s Advocate
File
no. 3230/2004. Alexandru
(pseudonym), having Romanian and French citizenship, domiciled in France,
submitted a complaint to the People’s Advocate with regard to the refusal of
the Romanian authorities to release him a new Romanian passport. He submitted
an application to the Ministry of Administration and Home Affairs for the
issuance of a new Romanian passport. Problems occurred in respect of the
orthography of his name in the birth certificate vs. the French identity card
where his name and first name were written in French language. The complainant
stated that the Romanian authorities had requested him to change his Romanian
name with the one in French language; otherwise the issuance of a new passport
would not be possible. The complainant underlined that he wanted the issuance
of a new passport without changing his civil documents. Following the People’s
Advocate efforts by the Passport Direction within the Ministry of
Administration and Home Affairs, the complainant received a new passport on his
Romanian name.
C. Right to petition (art. 51 of the
Constitution)
Examining the content of the complaints
submitted to the People’s Advocate, it was noticed that, in 2004, the violation
of the right to petition was invoked in 495
cases.
Due to the particular nature of this right,
such violation is connected in most cases with the violation of one or more
rights, i.e. the right to private property, guaranteed by art 44 of the
Constitution, the right to a decent living standard, prescribed by art. 47 of
the Constitution, the right to information, set forth in art 31 of the
Constitution.
Thus, individuals informed the People’s
Advocate of the fact that they addressed to public authorities by means of
applications, complaints, notices, proposals for the settlement of personal
issues (settlement of issues relating to pensions, property, taxes and income
taxes, subsidies, clarifications with regard to the status of the notices
submitted by the persons concerned, according to the Law no. 10/2001,
completed, on the legal status of real estates abusively taken over by the
state within March 6th 1945 – December 22nd 1989, or to
the status of the files regarding compensations granted according to the Law
no. 9/1998, republished, on the granting of compensations to Romanian citizens
for the assets passed to the property of the Bulgarian State following the
enforcement of the Treaty between Romania and Bulgaria signed in Craiova on
September 7th, 1940), but they were faced with cases of
maladministration with regard to the registration of applications by the
Romanian public authorities.
In addition, when the application was
registered, either the public authorities did not answer within the legal time
limit, or delayed the settlement of the issues.
The People’s Advocate provided support to the
complainants and promptly answered their requests. Thus, the People’s Advocate
conducted an inquiry at
- the existence of an Information, Press, Communication and Public
Relations Department within the Local Council of Alba Iulia, which has the
responsibility of keeping a computerized record of all ingoing documents,
including petitions, which in turn are not separately recorded;
- the lack of special record for the
registration of petitions, as prescribed by art 63 of the Framework Regulations
for the functioning and organization of
the Local Council at the level of Alba Iulia local municipality. It was noticed
that the Local Council of Alba Iulia did not examine each semester the
settlement of the petitions, as it was prescribed in the aforementioned
Framework Regulations;
- due to the large number of documents
registered with the Information, Press, Communication and Public Relations
Department, it became impossible to perform the survey with regard to the
observance of the time limits for the settlement of petitions.
Pursuant to such findings, the People’s Advocate considered that the
right of individuals to petition, provided for in art 51 of the Romanian
Constitution, was infringed as the respective petitions were not answered
within the time limit provided by the law. Consequently, according to the
provisions of the Law no. 35/1997, republished, the People’s Advocate issued
the recommendation no. 8 of December 6th,
2004 referring to the violation of the right to petition.
CASE STUDY – cases resolved through the intervention of
the People’s Advocate
File no. 301/2004. Mihai (pseudonym) submitted a complaint to the
People’s Advocate with regard to the refusal of the National Archives to issue
a certificate granting him the capacity of beneficiary according to the
provisions of the Law no. 309/2002, amended and completed, on the recognition
and granting of rights to the persons having performed military service with
the General Direction of Labor Service within 1950 – 1961. The complainant
states that, subsequent to the answer received from the Military Unit 02405
Pitesti, he addressed to the National Archives, for the issuance of the
document proving the performance of the military service with the labor
departments of the General Direction of Labor Service. Pursuant to the People’s
Advocate efforts by the National Archives, the complainant received the
certificate requested.
File no. 2218/2004. Cristina (pseudonym) submitted a complaint to
the People’s Advocate with regard to the failure of the Administration of Real
Estate Fund in
File no. 3893/2004. Ioana (pseudonym) submitted a complaint to the
People’s Advocate with regard to the delay of the Municipality of sector 5
File no. 4236/2004. Emilia (pseudonym) submitted a complaint to
the People’s Advocate with regard to the fact that she had lodged applications
with the National House of Pensions and other Social Security Rights in order
to receive a new retirement decision and differences in the payment of the
pension she was entitled to according to the legal provisions, but she received
no answer. Pursuant to the People’s Advocate efforts, the National House of
Pensions and other Social Security Rights answered the complainant’s request
and she received the differences in payment for January 1st 2004 –
September 31st 2004, as of September 23rd 2004.
File no 48/2004. Maria (pseudonym) submitted a complaint to the
People’s Advocate territorial office in
File no. 44/2004. Emilia (pseudonym) submitted a complaint to
the People’s Advocate territorial office in
File no. 13/2004. Vasile (pseudonym) submitted a complaint to
the People’s Advocate territorial office in
In 2004, the
People’s Advocate received 403 complaints with regard to the violation
of the right to information. The main aspects alleged refer to: request of
information relating to the issuance of the necessary certificates according to
the Law no. 309/2002 on the recognition and granting of rights to persons
having performed military service with the General Direction of Labor Service
within 1950-1961, information relating to the enforcement of Law no. 290/2003
on the granting of compensations to Romanian citizens for the property seized,
retained or remained in Basarabia, Bucovina de Nord and Herţa County after
the War and the enforcement of the Peace Treaty between Romanian and the
Allies.
After examining
such complaints, it is outlined that there are some public authorities and
institutions which do not comply with the obligation, prescribed by the
Constitution, of providing applicants with the information requested, according
to the Law no. 544/2001 regarding free access to public interest information.
The People’s
Advocate acted promptly, notifying local administrations, prefectures, the
National Archives, the territorial pension houses not having complied with
their obligation of answering the applicants’ requests with regard to public
issues and personal interest issues.
CASE STUDY -
cases settled through the
interventions of the People’s Advocate
File no. 8327/2004. Ion
(pseudonym) submitted a complaint to the People’s Advocate with regard to the
refusal of Bucharest Municipality to inform him of the status of the settlement
of applications referring to the granting of compensations according to the
provisions of the Law no. 10/2001 on the legal status of real estates abusively
taken over by the state within March 6th 1945 – December 22nd
1989. Pursuant to the People’s Advocate efforts by the administration of
E. The right to a healthy environment (art. 35
of the Constitution)
In 2004, 8
complaints referred to the violation
of the right to a healthy environment, provided for by art. 35 of the
Constitution. The aspects notified thereby referred to the pollution of the
environment and observance of the legal provisions regarding a healthy and
ecologically-balanced environment.
The People’s Advocate notified the public
authorities in charge thereof according to the law on environment protection
and improvement. Thus, the People’s Advocate acted at its own initiative in one
case of environment pollution in
CASE STUDY- case settled through the intervention of the
People’s Advocate
File no. 204/2004. Following the publication in the newspaper
“Monitorul de Bacău” of the announcement called “The administrator’s
negligence almost to cause an ecological disaster”, the People’s Advocate acted
at its own initiative with regard to an alleged violation of the art 35 of the
Constitution, regarding the right to a healthy environment. Pursuant to the efforts
of the People’s Advocate territorial office in
F. The right of the person
aggrieved by a public authority (art 52 of the Constitution)
In 2004, the right of a
person aggrieved by a public authority was invoked in 256 complaints.
In respect of the rights
invoked by individuals in relation to public authorities, the complaints
referred to the violation of lawful rights and interests by the breach of legal
rights such as: the right to pension, social subsidies provided for by the Law
no 416/2001 regarding minimum state-guaranteed income, failure to issue
property titles, according to the provisions of the Law 18/1991 on the land
fund or of the Law no. 10/2001 on the legal status of real estates abusively
taken over by the state within March 6th 1945 – December 22nd 1989, amended and
completed.
CASE STUDY - case settled through the intervention of the
People’s Advocate
File no 247/2004. Nicoleta (pseudonym) submitted a complaint to
the People’s Advocate territorial office in Bacău with regard to the
failure of the local council of Văleni commune, Neamţ county, to
solve the application whereby she, as specialized family doctor, requested the
concession of the location needed to the establishment of the medical office,
in accordance with the provisions of the Government Resolution no. 884/2004 on
the concession of locations for the establishment of medical offices. Pursuant
the intervention of the People’s Advocate territorial office in
File no. 6444/2004. Ioana (pseudonym) submitted a complaint to the
People’s Advocate with regard to the failure of the administrator of the
building where she lived, to perform his duties, aspects that she also notified
to the local municipality of sector 3
File no. 260/2004. Mihai (pseudonym) submitted a complaint to the
People’s Advocate territorial office in Bacău with regard to the refusal
of the local council of Răcăciuni commune, Bacău County, to
reimburse the public transportation expenses he incurred in traveling from and
to the place of work, according to the provisions of the Law no. 128/1997
amended and completed, regarding the status of the teaching staff. Following
the action of the territorial office in
2.4.
The rights of children, family, youth, retired persons and disabled persons
A. Protection of youth and children (art. 49 of the Constitution)
On the grounds of the provisions of the Law no.
35/1997, individuals, including children, may address to the People’s Advocate
either directly or by legal representative, when their rights are violated
through the action or inaction of public administration authorities.
In 2004, the People’s Advocate received 15 complaints
with regard to the problems of children and youth, referring to the following
categories of rights: the right to a decent living standard (art. 47 of the
Romanian Constitution), the right to health care (art. 34 of the Romanian
Constitution), the right to life and to physical and mental integrity (art. 22
of the Constitution) the right to special protection of disabled persons (art.
50 of the Constitution), the right to education (art. 32 of the Constitution).
Young people aged 18 years old and having left
placement centers addressed to the People’s Advocate, claiming that the current
protection system for institutionalized children is defective and not able to
provide, in all cases, integration in the society after the age of 18.
In addition, the complainants underlined the
difficulties in obtaining financial support on the basis of the Government
Resolution no. 1488/2004 regarding the approval of the eligibility criteria and
financial support to be granted to students within the Program “High School
Money”.
Referring to the aspects found, the People’s
Advocate interceded with the county directions for children protection, county
school inspectorates, the Ministry of Education and Research.
Pursuant to the interventions of the People’s
Advocate, the public authorities communicated the settlement of the
complainants’ problems and took the legal measures required. In addition, the
complainants were informed and advised to take the necessary legal actions for
the settlement of the problems they faced.
CASE STUDY - case settled through the intervention of the
People’s Advocate
File no. 4620/2004. Mihaela
(pseudonym) submitted a
complaint to the People’s Advocate with regard to the family status and
difficult financial conditions she faced. In this respect, the complainant
informed us that she faced financial difficulties in raising her five children.
Pursuant to the People’s Advocate efforts by the
File no. 5182/2004. Ioana (pseudonym)
submitted a complaint to the People’s Advocate with regard to the abusive
behavior of her daughter’s classmates. From the content of the petition, it
came out that the underage girl, student of the
File no. 4386/2004. George (pseudonym) submitted a complaint to
the People’s Advocate with regard to the abusive behavior of a social assistant
employed with the family placement centre in Bârlad, where he was
institutionalized. The complainant showed his discontent toward the center’s
decision to des-institutionalize him at 18 years of age, although he was
attending the courses of an education institution. Pursuant to the People’s
Advocate efforts by the Children Protection Direction in Vaslui, the
complainant’s problem was solved, and based on the reassessment of the
social-family and school situation, he remained at the family placement centre
in Bârlad.
File no 3568/2004. Adriana
(pseudonym) submitted a complaint to the People’s Advocate with regard to
the difficult financial condition which she faced in raising her two children.
As to the issues notified, the People’s Advocate addressed to the local
B. The right to a decent
living standard (art. 47 of the Constitution)
In 2004, the People’s Advocate received 859 complaints referring to the rights of retired persons and of other
categories of individuals, in the context of alleged violations of the right to
a decent living standard.
The main aspects notified in the complaints
submitted to the People’s Advocate referred to the low amount of the pension
for those registered with the pension fund before the entrance in force of the
Law no. 19/2000 on the public pension system and other social security rights,
further amended and completed, to the errors in the calculation of the
subscription index, to the incorrect enforcement of the legal provisions on the
indexing and re-correlation of pensions, delays in the payment of pensions and
in the transferal of retirement files.
For the settlement of these complaints, the
People’s Advocate notified the territorial pension houses and conducted
investigations at the offices of such public authorities.
Following the
surveys conducted by the People’s Advocate, the territorial pension houses
proceeded to the repair of the damages by issuing new pension decisions,
returning the amounts unreasonably retained etc.
In some
cases, the People’s Advocate did not receive the information requested from the
local or county pension houses such as: the local pension house of sector 1,
the local pension house of sector 2, the local Pension House of sector 3, the
local Pension House of sector 5, the local Pension House of Bucharest, the
county pension house of Argeş. Therefore, the People’s Advocate addressed
to the National House of Pensions and other Social Security Rights. Similar to
the previous year, the most prompt reaction came from the National House of
Pensions and Other Social Security Rights, which, in all the situations,
answered within the legal time-limit and requested the local pension houses to
comply with the requests of the People’s Advocate.
In some cases, the complainants either did not
bring evidence of the delay or of the public administration’s refusal to settle
the application, or their applications fell inside the exclusive competence of
the courts of law, situation when the necessary advice was given to the
complainants.
CASE STUDY- cases settled through the intervention of the
People’s Advocate
File no. 4349/2004. Claudiu (pseudonym) complained about the lack
of answer to his application lodged with the Local Pension House of sector 1,
whereby he argued against the amount of his pension. Following the People’s
Advocate efforts by the Local Pension House of sector 1, the latter issued a
decision for the revision of the pension, applicable starting with February 1st,
2001.
File no 45/2004. Constantin (pseudonym) submitted a complaint
to the People’s Advocate with regard to the refusal of the Local Pension House
of sector 3, Bucharest, to inform him of the modality of determining the right
to pension, the period of time concerned when determining the pension, the
modality of determining the new pension, as well as the social security
measures he benefits of. Following the People’s Advocate efforts, the Local
Pension House of sector 3 resolved the complaint and issued the complainant
another decision rectifying the date of the registration of the right to
pension.
File no. 214/2004. Vasile (pseudonym) submitted a complaint to
the People’s Advocate with regard to the refusal of the County Pension House
Teleorman to process his application whereby he requested the change of
classification from: pension for 3rd degree work incapacity, to
pension for years of work and age limit. Following the People’s Advocate
efforts, the County Pension House Teleorman resolved the application, changing
the complainant’s pension from the category: pension for 3rd degree
work incapacity to pension for years of work and age limit. Therefore, starting
with March 1st, 2001, the complainant’s pension amounted to
1.235.185 lei, instead of 607.185 lei.
File no. 6843/2004. Alexandru (pseudonym) submitted a complaint to
the People’s Advocate with regard to the refusal of the Local Pension House of
sector 6 to answer his applications for the calculation and payment of his
pension. The People’s Advocate addressed to the Local Pension House of sector 6
requiring information relating to the complainant’s situation. Following the
People’s Advocate efforts, the complainant’s pension file was reexamined and a
decision for the registration of the right to pension was issued. At the same
time, the complainant was granted the differences in payment for a 3-month
period before the date when the aforementioned decision was issued.
File no. 8055/2004. Marin (pseudonym) submitted a complaint to the
People’s Advocate as he was dissatisfied with his pension determined by the
County Pension House Teleorman. Following the People’s Advocate efforts, the
County Pension House Teleorman reexamined all the documents in the
complainant’s pension file and issued the decision to review the pension,
increasing it from 749.627 lei to 3.304.812 lei.
File no. 7513/2004. Ioana (pseudonym) submitted a complaint to the
People’s Advocate with regard to the failure of the County Pension House
Damboviţa to give answer to her application, whereby she requested the
return of the amounts unreasonably retained from her pension. Following the
People’s Advocate efforts, the County Pension House Damboviţa ordered the
return of the amounts retained from the complainant’s pension within July –
October 2004.
File no. 252/2004. Mihai (pseudonym) submitted a complaint to the
People’s Advocate territorial office in
File no. 4/2004. George (pseudonym) submitted a complaint to the
People’s Advocate territorial office in
File no. 50/2004. Ion (pseudonym) submitted a complaint to the
People’s Advocate territorial office with regard to the refusal of the County
Pension House Alba to resolve his application for the recalculation of the
pension. Following the efforts of the People’s Advocate territorial office in
C. Protection of Disabled Persons (art. 50 of
the Constitution)
In respect of alleged violations of the rights
of disabled persons, the People’s Advocate received 60 complaints in 2004,
which mainly referred to: the classification or failure to classify the
complainant within a lower degree of disability than the previous one, the
reassessment of the disability degree, lack of funds for the payment of
personal nurses, delay in the issuance of disability certificates, failure to
abide by the time-limits for establishing accessibility platforms to disabled
persons.
In order to resolve such issues, the People’s
Advocate addressed to local administrative authorities in charge of the
protection of disabled persons, to the state inspectorates in the construction
industry and to the Ministry of Transportation, Construction and Tourism.
Following the
surveys conducted at the aforementioned public authorities, it was noticed the
lack of funds to the local budget for the payment of personal nurses (although
such funds include separately the expenses relating to the right of children
and adults with serious disabilities to a personal nurse), the delay in
resolving the applications and the lack of objectivity of the social surveys
performed.
In addition, it was found out that the
reorganization of the National Authority for Disabled, as well as the issuance
of new regulatory acts in the field of protection of disabled, setting forth
the duties both for the central administrative authorities and for the local
public authorities, led to delays with regard to the issuance of the new
certificates for the classification within a disability degree at the expiry of
the former ones, lack of continuity in granting the rights provided for by the
law to disabled persons.
Following investigations conducted by the
People’s Advocate, it was noticed that, although the law gap on the competences
of public authorities to enforce sanctions for the failure to abide by the time
limits set for establishing the accessibility platforms to disabled persons was
covered, the problems of this social category were not solved yet. In addition,
the representatives of the Ministry of Transportation, Construction and Tourism
expressed their openness with regard to the identification of some alternatives
for establishing the accessibility platforms.
In order to regulate this case, we would
consider appropriate, as dealt with before in the case of funds from the state
budget specially intended to expenses regarding the right of children and
adults with serious disabilities to a personal nurse, to allot separate amounts
for establishing the accessibility platforms, from the local budget.
CASE STUDIES – cases settled through the intervention of the
People’s Advocate
File no. 1503/2004. Maria (pseudonym)
submitted a complaint to the People’s Advocate with regard to the following
facts: her mother had a serious disability and therefore, she was entitled to a
personal nurse. Although the complainant repeatedly requested the mayor of
Brădeanu commune,
File no. 255/2004. Maria (pseudonym) submitted a complaint to the
People’s Advocate territorial office in Bacău with regard to the measures
taken by the administration of Parava commune, Bacău county, to employ a
personal nurse for her daughter having 1st degree disability. From
the complaint and documents attached thereto it came out that the disability
certificate, issued on September 1st 2004, provided that her
daughter should benefit of a personal nurse, which the municipality of Parava
refused to employ, reasoning that there were not enough funds for the payment
of the nurse’s salary. Following the efforts of the territorial office
2.5.
Military
service, justice, police and penitentiaries
A.
Military
service
In 2004, complaints drafted by retired soldiers
were submitted to the People’s Advocate; the complainants were dissatisfied
with the evolution of their military pension, set before the entrance in force
of the Law no. 164/2001, amended, on state military pensions. In these cases,
the People’s Advocate addressed to the Ministry of Administration and Home
Affairs and to the Ministry of National Defense.
The Ministry of National Defense, with which
the People’s Advocate cooperated very well in the settlement of other complaints
submitted by individuals, informed us that, pursuant to the update of the state
military pensions, starting with October 1st, 2004, the differences
occurred between the pensions determined based on the new law and the ones
already subject to payment at the date of the entrance into force of the new
law will disappear.
In addition, the People’s Advocate continued to receive complaints from
the persons having performed military service in the labor units of the General
Direction of Labor Service, thus, besides the inquiries in this field performed
in 2003, another inquiry was
conducted in 2004. In the same time, it issued 3 recommendations and drafted a
special report referring to the enforcement of the provisions of the Law no.
309/2002 amended and completed, on the recognition and granting of rights to
persons having performed military service with the General Direction of Labor
Service within 1950 – 1961.
Therefore, with regard to the investigations
performed, the People’s Advocate noticed a series of problems in the
enforcement of the Law no. 309/2002, as follows:
-
failure of
the Military Unit 02405 Piteşti and
of the National Archives to solve within the legal time limit the petitions
submitted by the applicants, with regard to the delay in sending the answers
and to the request to pay the value of the services provided in exchange of the
issuance of authorizations.
-
failure to
solve within the legal time limit the applications for the granting of the
capacity of beneficiary under the Law no. 309/2002 by the Commissions for the
enforcement of the provisions of the Government Ordinance no. 105/1999 on the
granting of rights to the persons oppressed by the political regimes in Romania
between September 6th 1940 and March 6th 1945 due to
ethnical reasons, approved with amendments by Law no 189/2000, further amended
and completed, Commissions that operate within the pension houses in the
territory and in Bucharest and that also
enforce the rights provided for by the Law no 309/2002;
- lack of a centralized record relating to the
personnel of the labor units within the General Direction of Labor Service and
to the periods of time when such personnel worked;
- gaps relating to the Law no. 309/2002 and to
the Government Resolution no. 1114/2002 on the approval of Methodological Norms
for the enforcement of the provisions of Law no 309/2002, referring to the
possibility of the National Archives within the Ministry of Administration and
Home Affairs to issue certificates regarding the performance of military service
with the military units of the Labor Service General Directions;
- lack
of a unitary practice in enforcing the provisions of the Law no. 309/2002 by the Commissions within the
pension houses in the territory and in
In respect of the issues listed above, the
People’s Advocate made three
recommendations to the Ministry of
National Defense (for the Military Unit 02405 Piteşti), the National Archives within the Ministry of
Administration and Home Affairs and The Ministry of Labor, Social Solidarity
and Family (for the Commissions within the pension houses in the territory
and in Bucharest) (Annex no. 8)
The
respective public authorities were advised as follows:
-
to examine the situation occurred due to the fact the answers to the petitions whereby
applicants requested the issuance of certificates proving the performance of
military service with the labor units within the Labor Service General
Directions were not communicated within the legal time limit;
- to cooperate in order to keep a centralized
and complete record of the personnel of the
labor units within the Labor Service General Directions;
- to observe the provisions of the Law no.
428/2003 for supplementing the art 6 of the Law no. 309/2002, according to
which no taxes are to be paid for the issuance of the documents necessary to
prove the applicability to the applicants of the provisions of art.1, Law no.
309/2002;
- to further set out an
organizational framework for the settlement within the legal time limits of the
applications received and for the inclusion of the notices contained by the
minutes of the National House of Pensions and other Social Security Rights
issued for the unitary enforcement of the Law no. 309/2002.
The modality in which the
National Archives, the Ministry of National Defense and the Ministry of Labor,
Social Solidarity and Family applied the People’s Advocate recommendations is
further underlined:
In order to remove malfunctions occurred in the enforcement of the Law
no. 309/2002, the National Archives in
cooperation with the National House of Pensions and other Social Security
Rights outlined the need of the following measures:
- evidence of the
performance of the military service within the Labor Service General Direction
will be made through witnesses in
the absence of the official documents
- the military record
shall be accepted, taking into account that it represents the main documentary
evidence for the person having performed military service
- “service provision
certificates”, issued by the Ministry of Transportation, Construction and
Tourism and the Labor Service, kept by the applicants shall be accepted in
order to determine the capacity of beneficiary under the Law no 309/2002.
Pursuant to the People’s
Advocate recommendations, the Ministry
of National Defense took the following measures:
- increasing the number
of personnel within the Military Unit 02405 Piteşti;
- providing the unit with
the calculation and multiplication equipment, as well as with the financial
resources above the original budgetary allowances;
- cooperating with
specialists in the field of military archives, in order to draft a report
regarding the personnel of the labor units within the Labor Service General
Direction;
- starting the process of
amending and completing the Law no.
309/2002, in cooperation with the other ministries concerned, in order
to simplify and easily implement the procedure by which the persons benefiting
of this law will be able to accomplish their rights.
With a view to unitarily
enforcing the Law no 309/2002, The
Ministry of Labor, Social Solidarity and Family provided the following:
-
the
passing by the Commissions within the territorial pension houses of the measures necessary to the observance
of the notices issued through the minutes of the National House of Pensions and
other Social Security Rights;
-
contacting
the Ministry of Administration and Home Affairs – the National Archives and the
Ministry of National Defense for the drafting of a centralized and complete
record with regard to the units within the Labor Service General Direction;
-
examining
the possibility of drawing up a draft law for the amendment and completion of
Law no. 309/2002, so as to pass regulatory addenda aimed at giving the
Commissions the possibility to enforce more easily this law.
The People’s
Advocate special report referred to
the main issues and malfunctions occurred in the enforcement of the provisions
of the Law no. 309/2002, found by
the People’s Advocate from the analysis of complaints, inquiries performed and
answers to the recommendations sent to the public administration authorities
concerned.
In addition,
the special report included the People’s Advocate proposal for the improvement
of the laws referring to the recognition and granting of rights to persons
having performed military service within the Labor Service General Direction
within 1950-1961, respectively:
1. Completion of art 6 para. (2) of
the Law no 309/2002 and of art 6 para. (1) of the Government Resolution no.
1114/2002 regarding the approval of methodological norms for the enforcement of
the provisions of Law no. 309/2002 on the recognition
and granting of rights to persons having performed military service within the Labor Service General
Direction within 1950-1961 with provisions referring to:
a) the possibility of proving the performance of
the military service with the labor units of the Labor Service General
Direction within 1950-1961 with certificates issued by the National Archives .
b) the possibility of proving by witness the
performance of the military service within the labor units, when the
complainants cannot prove otherwise that they performed military service in the
labor units of the Labor Service General Direction within 1950-1961.
2.
Amendment of the provisions of the Law no. 309/2002, with the provisions
included in the minutes no. 4087/2002 and no. 2784/2003 of the National House
of Pensions and other Social Security Rights
3. Keeping a centralized
record of all the personnel in the labor units of the Labor Service General
Direction, eventually by legislative measures.
Referring to the People’s Advocate special
report, we have to mention that, although it was submitted to the Parliament
Chambers in March 2004, no measures have been taken until now for the amendment
of the Law no. 309/2002, amended and completed, on
the recognition and granting of rights to persons having performed military service within the
Labor Service General Direction within 1950-1961.
File no. 2395/2004. Mihai (pseudonym) submitted a complaint to the
People’s Advocate, stating that he addressed to the Military Unit 02405
Piteşti, for the issuance of a certificate referring to the military
service performed, with a view to benefiting of the capacity provided for by
the Law no. 309/2002 amended and completed, on the recognition and granting of
rights to persons having performed military service within the General
Direction of the Labor Service within 1950-1961. In addition, the complainant
showed that, for the settlement of such situation, the Military Unit 02405
Piteşti recommended him to address to the National Archives, which he did
twice but received no answer. Following the People’s Advocate intervention, the
National Archives issued the certificate requested as of which it comes out
that he performed military service within the labor directions.
File no. 4824/2004. Ion (pseudonym) submitted a complaint to
the People’s Advocate with regard to the fact he did not receive the amounts to
which he was entitled in capacity of beneficiary of the Law no. 309/2002,
amended and completed. In addition, the complainant stated that he had not
received any decision for the recalculation of his pension although his pension
had been reduced. In such circumstance, the People’s Advocate addressed to the
local pension house of sector 3
B.
Justice
In the
context of the provisions of art 21 of the Romanian Constitution referring to
the free access to justice, the 521
complaints submitted to the People’s Advocate referred mainly to:
procedural faults in lawsuits before the courts, contestations regarding
judgments pronounced by the courts, contestation of resolutions pronounced by
the Prosecutor’s Office, infringement of the parties’ right to a fair trial and
settlement of cases in due time.
Generally,
such complaints were submitted to the courts of law.
In situations
when the courts of law delayed the settlement of complaints, the enforcement of
definitive and irrevocable judgments and the settlement of criminal complaints
addressed to the Prosecutor’s Office, the People’s Advocate informed thereof
the minister of justice, the ministry of home affairs, the presidents of the
courts, as applicable, according to art 18 of the Law no 35/1997, republished.
CASE STUDY – case resolved through the People’s Advocate
intervention
File no. 4639/2004. Alexandru (pseudonym) submitted a complaint to
the People’s Advocate with regard to the fact that he was not informed of the
status of its criminal complaint lodged with the Military Prosecutor’s Office
in
C.
Police
A part of the complaints submitted to the
People’s Advocate referred to the complainants’ discontent with regard to the
police activity. In this respect, the main issue notified to the People’s
Advocate by the complainants was the delay of the prosecution bodies in the
settlement of the criminal complaints submitted. In order to support the
complainants, the People’s Advocate requested information from the police
stations (i.e. Police Station 11 in
In addition, the People’s Advocate was informed
of the inadequate conditions in which the persons in the police arrest were
treated. In this respect, the People’s Advocate conducted an investigation at the detention facilities of the County Police
Inspectorate in Gorj, following which inadequate conditions were found, as
regards the aspect of the location, the reduced number of sanitary groups in
relation to the number of convicts and week lightening of the detaining rooms.
In addition, following the investigation
performed, the violation of the right of convicts to have their daily walk was
noticed, as they did not benefit of such right during Sundays and Saturdays.
The People’s Advocate informed the General
Police Inspectorate of the aspects found during the investigation.
CASE STUDY – case resolved through the People’s Advocate
intervention
File no. 6188/2004.
Andreea (pseudonym) submitted a complaint to the People’s Advocate with regard
to the delay of the Police Station 14 of Bucharest to settle within a
reasonable time the criminal file no. 0126/2004. The People’s Advocate
requested information from the commissar of the Police Station 14 Bucharest,
referring to the status of the criminal investigation and measures taken in the
aforementioned file. Following the People’s Advocate efforts, the police
station informed that the prosecution for the offenses provided for in art 242
and 246 of the Criminal Code, in the aforementioned file, was started.
D. Penitentiaries
In 2004, the People’s Advocate
received 57 complaints referring to
possible violations of the rights of the persons serving convictions in
penitentiaries.
The complaints submitted to the People’s
Advocate referred mainly to: drafting and presenting medical documents to the
convicts, with a view to medical examination and disability pensions; failure
of the territorial pension houses to pay the amounts to which the convicts were
entitled, alleged violations of the convicts’ right to a decent living
standard. In addition, the complaints submitted by the convicts referred to:
access to culture, right to information, right to health care, as well as to
the particular rights of such social category: right to nutrition, right to
shopping, right to have daily walks.
Referring to the observance by the public
authorities of the convicts’ rights, the People’s Advocate conducted an investigation at the Penitentiary in
Following the investigation, it was found out
that, in case of dangerous convicts, the measure of moving the artificial light
from the chambers to the halls was excessive. In addition, the number of TV
receivers and magazine subscriptions was small due to the budget assigned.
The People’s Advocate informed the National
Penitentiary Administration thereof, and the latter communicated that, in order
to provide artificial lightening in the rooms where dangerous convicts live,
the possibility of mounting low-voltage power supplies (12-24V) was to be
considered. In addition, measures were taken to increase the number of
subscriptions to local and central newspapers and magazines, and, in order to
facilitate the convicts’ access to culture, the county library was contacted
aiming at monthly lending books to the penitentiary.
In respect of
the observance of the imprisonment conditions, respective the space, equipment,
temperature in the detention room, the right to food and shopping, the People’s
Advocate representatives conducted an
investigation to the Maximum Security Penitentiary in
Referring to the convict’s right
to go shopping, it was found that such right was observed, according to the
applicable legal provisions.
Consequently, the efforts involved
therein led to the conclusion that the statements of the complainant, which
served his sentence within the Maximum Security Penitentiary in Bucharest
Rahova, were not sustained.
CASE STUDY – cases resolved through the People’s Advocate
intervention
File no 4155/2004. Mihai (pseudonym), serving his sentence in Bacău
Penitentiary submitted a complaint to the People’s Advocate stating that the
penitentiary delays the drafting of the documents needed for the medical
examination to obtain a disability pension. In addition, the complainant showed
that he requested the medical office of the penitentiary to be presented to the
committee for medical examination and recovery of work capacity, for medical
inspection, but his requests remained unsolved, the penitentiary’s personnel
delaying the drafting of the medical file and report. Following the People’s
Advocate intervention, Bacău Penitentiary informed that the medical file
and report were drafted and ready to be presented to the medical examination
committee.
File no 6675/2004. Victor (pseudonym), serving his sentence
in Tulcea Penitentiary, submitted a
complaint to the People’s Advocate requesting support to obtain the money,
representing pension, to which he was entitled. The complainant added that he
notified the Local Pension House Oneşti of the address of penitentiary
where he served his sentence and the number of the retirement file, stating
that he wanted to receive the money representing pension at his place of
conviction. Following the People’s Advocate efforts, the complainant received
his pension for September 1st 2000 – September 30th 2003,
and afterwards, the pension was to be paid by the county pension house in the
territorial area of the penitentiary.
2.6. Property, labor, social security, taxes
and income taxes
In 2004, the People’s Advocate received 1325 complaints referring to the
observance by the public authorities of the right to private property,
guaranteed by art 44 of the Constitution.
The main aspects underlined in the complaints
submitted to the People’s Advocate referred to the enforcement of the Law no.
18/1991 of the land fund, republished, of the Law no 10/2001, amended and
completed, regarding the legal status of some real estates abusively taken over
by the state within March 6th 1945 – December 22nd 1989,
and of the Law no. 9/1998 on the granting of compensations to Romanian citizens
for the assets transferred to the property of the Bulgarian State following the
enforcement of the Treaty between Romania and Bulgaria.
·
Thus, with
regard to the Law no. 18/1991, republished, the complainants have notified the
People’s Advocate of the local public authorities’ refusal to issue the titles,
to enforce definitive and irrevocable judgments by which the cancellation or
amendment of the titles issued with the violation of the legal provisions was
requested. In this respect, the People’s Advocate notified the local
commissions responsible of enforcing the Law no. 18/1991, republished.
With regard to the enforcement of the Law no
10/2001 the complainants notified the People’s Advocate mainly of the public
authorities' and institutions' failure to comply with the time limit set for
the resolution of the applications submitted by the persons entitled.
In this respect, the People’s Advocate
requested information from the local public authorities following which it
found that the notices submitted under the Law no. 10/2001 were not settled
within the legal time limit of 60 days. Consequently, the failure to settle the
files submitted under the Law no. 10/2001 within the legal time limit is
considered a delay in setting the indemnities to be awarded to the persons
entitled, should the restitution in kind of the real estate not be possible.
At the same time, from the local
administrations’ or prefectures’ answers with regard to the exceeding of the
legal term, it was found out that:
- the complainants often submit incomplete
evidence with regard to their capacity of entitled person or to the property
right
- the complainants do not use legal action
against the documents settling the applications, expressly requesting their
administrative settlement, reasoned by the lack of financial resources to bear
a lawsuit
- at the level of the public authorities and
institutions, there are problems with regard to the cooperation between
different departments and competent services to settle the applications
In addition, in order to support the
complainants and in the absence of answers from the public authorities
initially notified, 3 inquiries were
conducted at the local administration of Bucharest, which was involved in the
enforcement of the Law no. 10/2004 (Annex no 7). Following the inquiries, it
came out that the settlement of the applications under the Law no. 10/2001 as
well as of the applications requesting information with regard to the
settlement status, was delayed. In such cases, the People’s Advocate drafted two recommendations (Annex no. 8).
Pursuant to the People’s Advocate recommendations made to the
Administration of Bucharest, the latter informed that it examined the situation
and increased the number of personnel within the Service: In Kind Restitutions
- Law no. 10/2001 - by 33 employees. In addition, clear responsibilities for
each officer were set, measures for an accurate evidence of complaints were
taken, trainings relating to the modality in which answers are drafted were
carried out and disciplinary measures were taken.
·
Complaints
referring to the enforcement of the Law no. 9/1998 regarding to the granting of
compensations to the Romanian citizens for the goods transferred to the
property of the Bulgarian State following the enforcement of the Treaty between
Romania and Bulgaria, refer to the delay in the granting of compensations and
to the lack of transparency of the commissions responsible for the enforcement
of the law.
In 2004, a significant number of individuals
informed the People’s Advocate of the fact that their files submitted to the
central commission for the enforcement of the Law no. 9/1998 were not solved.
In addition, the complainants informed the People’s Advocate of the fact that
they submitted applications to the Central Commission for the enforcement of
the Law no. 9/1998 and to the Ministry of Public Finance, whereby they
requested to be informed of the status of their files, requests that received
no answers within the legal time limit.
The People’s Advocate informed the Central
Commission for the enforcement of Law no. 9/1998 of the aspects found, and
requested the communication of the date and number of registration of the
complainants’ files with this authority and a report on their status.
Information on the work modality of the Central Commission for the enforcement
of the Law no. 9/1998 was also requested.
As the commission had no reaction to the
People’s Advocate notifications, the situation was communicated to the Ministry
of Public Finance.
Following the People’s Advocate efforts, the
Central Commission for the enforcement of the Law no. 9/1998 answered that the
files were examined according to the order of their reception and registration
with the Ministry of Public Finance, on a pro rata basis for each county. The
validation/invalidation activity conducted by the Central commission for the
enforcement of the Law no. 9/1998 was delayed due to the large number of files
received from the county commissions, to the fact that commission’s members
meet only once a month, as well as to the fact that most resolutions of the
county commissions were invalidated by the Central Commission.
In such a situation, the People’s Advocate
conducted an inquiry at the Ministry of Public Finance. Thus, it found out
that, in the spring of 2004, when the establishment of a new specialized body
for the enforcement of the Law no. 9/1998 was debated, the Central Commission
became inoperative. The only activity carried out by the commission within
April – September 2004 was that of packing and preparing the files received, in
order to transfer them to the new body following to be established.
With the occasion of this inquiry, the People’s
Advocate found out that, until September 2004, the Commission had 400 files
unsolved of the ones submitted by the complainants until the end of 2000.
The People’s Advocate made a recommendation to the Ministry of
Public Finance concerning the survey of the situations occurred due to the
failure to settle, within a reasonable time, the files submitted under the Law
no. 9/1998 and to resolve within the legal time limit the individuals’
applications requesting information thereof. Moreover, the People’s Advocate
recommended measures to increase the communication process between the Central
Commission and the citizens, allowing individuals to obtain, in the shortest
time possible, information relating to the status of their files (Annex no 8).
Pursuant to such recommendation and in order to
increase the efficiency in solving the applications, through Government Resolution
no. 1643/2004 on the approval of Methodological Norms for the enforcement of
the Government Ordinance no. 94/2004 on the implementation of financial
measures referring to measures for the completion of the enforcement of the Law
no. 9/ 1998 republished, the duties of the former Central Commission within the
Ministry of Finance were taken over by the Department for the enforcement of
the Law no. 9/1998 within the Prime Minister’s Cabinet.
CASE STUDIES – cases resolved through the People’s Advocate intervention
File no. 3635/2004. Elena (pseudonym) submitted a complaint to the People’s Advocate with
regard to the failure of the Prefect of Bucharest to answer her application
whereby she requested the amendment of the title that contained drafting errors.
Following the People’s Advocate efforts, the complainant received the answer
requested whereby she was informed that, by a resolution of the Bucharest
Commission for the enforcement of the law on land fund, the proposal for the
amendment of the title incorrectly drafted was validated.
File no. 79/2004. Marin (pseudonym) submitted a complaint to the
People’s Advocate territorial office in
File no. 139/2004. Anghel (pseudonym) submitted a complaint to the
People’s Advocate territorial office
File no. 30/2004. Mihai and Ioana (pseudonyms) submitted a
complaint to the People’s Advocate territorial office in Alba Iulia with regard
to the refusal of the Communal Commission of Cricău,
File no. 71/2004. Letiţia (pseudonym) submitted a complaint
to the People’s Advocate territorial office Alba Iulia with regard to the
failure of the local administration of Rîmeţ commune,
File no. 154/2004. Victor (pseudonym) submitted a complaint to
the People’s Advocate territorial office in Alba Iulia with regard to the
refusal of the local administration of Ocna Mureş,
File no 7584/2004. Elena
(pseudonym) submitted a complaint to the People’s Advocate with regard to the
fact she lodged two notifications with the Administration of Bucharest, whereby
she requested, according to the provisions of the Law no. 10/2001, the return
into her property of a building located in
File no. 174/2004. Mihaela (pseudonym) submitted a complaint to the People’s
Advocate territorial office in
B. Labor and social security
In 2004, the People’s Advocate received 87 petitions referring to the failure
of the public authorities to observe the right to labor and social security,
stated in art 41 of the Constitution. Thus, the People’s Advocate was notified
of the employers’ abuses related to employment, dismissal procedure, request of
information regarding reintegration on the job or granting of money rights.
Teachers – educators within a placement centre
for institutionalized children claimed violations of their right to work,
stating that they were not allowed by the county school inspectorate to
register to the pre-transferal and transferal session for teaching staff, as
provided by art 10 of the Law no. 128/1997 amended and completed, on the status
of the teaching staff. In other complaints, teachers requested the People’s
Advocate support as in their case, the provisions of the Teaching Staff
Schedule, approved by Order of the Minister of Education and Research no.
4926/2002 regarding the teaching staff movement schedule in the school year
2003 - 2004 were not observed, and their contestations lodged with the school
inspectorate were not solved within the legal time limits.
In addition, the People’s Advocate was notified
of the modality in which the School Inspectorate Caraş Severin organized
the contest for a position of educator. In this respect, the People’s Advocate
made legal efforts by the county school inspectorates and notified thereof the
Ministry of Labor, Social Solidarity and Family, as well as the Ministry of
Education and Research.
The observance of the right to labor of the
persons working in
a) The Office for the Migration of the Workforce created a “database”, both in
digital format and printed, by grouping on categories the requests received
from Romanian citizens wanting to work abroad
b) The employment contract form was drafted in
Spanish language and future employees were not aware of all their rights and
obligations stated by the employment contract.
c)
The Office for the Migration of the Workforce
kept a computerized record on Romanian citizens working in
Referring to
the status of the Romanian citizens working in
a) Protection of Romanian workers, by speeding up
the process of conclusion, by the Ministry of Labor, Social Solidarity and
Family, of the Social Security Agreement between Romania and Spain
b) Supplementing the duties of the Office for the
Migration of Workforce with the obligation of drafting a computerized record
with all the Romanian citizens working in Spain and ensuring transparency of
the computerized record of Romanians working in Spain, keeping the
confidentiality of personal data
c) Initiating the amendment of the Law no. 464
regarding the ratification of the Agreement between Romania and Spain for the
regulation and organization of the labor force movement between the two countries,
signed in Madrid on January 23rd, 2002 by the Ministry of Labor,
Social Solidarity and Family, containing clauses regarding the extension of the
legal relationships between the parties after the expiry of the validity term
of the employment contract, through the mediation of the selection commission
d) Establishment with the Romanian diplomatic
mission of advisory departments for Romanians working in
CASE STUDY – case resolved through the People’s Advocate
intervention
File no. 21/2004. Ioana (pseudonym) submitted a complaint to the People’s Advocate
territorial office in Constanţa with regard to the order of the Director
of the National Opera and Ballet Theatre ”Oleg Danovski” in Constanţa,
that terminated her employment contract following organizational measures
enforced at local level. In addition, the complainant stated that she attended
the contest organized by the National Opera and Ballet Theatre „Oleg Danovski”
for filling a vacancy, but the contest was organized without complying with the
study program required, meaning that the members of the examination board
requested her to perform a play not included in the program. Following the
efforts of the People’s Advocate territorial office
C. Taxes and income taxes
In 2004, the People’s Advocate received
complaints with regard to the failure of the public authorities to observe the
right to a correct taxation, stated in art. 56 (para. 2) of the Romanian
Constitution.
The complainants informed the People’s Advocate
of the defective modality of calculation of the taxes due to central and local
public authorities and to the delay in the issuance of taxation decisions.
In order to support the complainants, the
People’s Advocate addressed to the local taxes directions and to the public
finance administrations.
CASE STUDIES- cases resolved through the People’s Advocate
intervention
File no. 7956/2004. Florin (pseudonym) submitted a complaint to the
People’s Advocate with regard to the fact he repeatedly addressed to the Public
Finance Administration in
File no. 5602/2004.
Anca (pseudonym) submitted a complaint to the People’s Advocate with regard to
the fact she received no answer within the legal time limit to the request
addressed to the Local Tax and Income Tax Direction – sector 1
File no. 5060/2004. Monica (pseudonym) submitted a complaint to
the People’s Advocate with regard to the fact that in March 2003, she paid the
income tax for a land located outside Perişoru village,
File no. 197/2004. Gheorghe (pseudonym) submitted a complaint to
the People’s Advocate territorial office in Alba Iulia with regard to the
refusal of the local administration of Ocna Mureş,
Law no. 35/1997 on the organization and
functioning of the People’s Advocate, republished, establishes the territorial
offices of the People’s Advocate institution and counties under their
jurisdiction, thus achieving coverage of all geographic areas.
The establishment of the People’s Advocate
territorial offices is aimed at satisfying a major need, respectively that of
allowing easy access of citizens to the People’s Advocate services.
Through its territorial offices, the People’s
Advocate is permanently in touch with the problems the citizens face, and
especially with the maladministration of the local public authorities in the
areas where the respective offices operate.
In order to facilitate citizens’ access to the
People’s Advocate services and accomplish its duties by continuing the efforts
started in 2003, when the territorial offices in
In 2004, in order to provide appropriate
locations for the territorial offices, a Protocol regarding the transferal into
the People’s Advocate use of locations held by the Court of Accounts was
concluded between the People’s Advocate and the Romanian Court of Accounts.
The activity carried out by the People’s
Advocate territorial offices consists in the settlement of complaints through
actions and interventions by the local public authorities, hearings and
answering telephone calls.
In 2004, at the People’s Advocate territorial
offices (Alba Iulia,
Alba
Iulia: 101 complaints, leading
to 53 files, 519 hearings, 119 phone calls, 33 information activities, one
inquiry.
Bacău: 151 complaints, leading to 70 files, 1595
hearings, 139 phone calls, 38 information activities, one inquiry.
In addition, in 2004, together with the
logistic actions to providing equipment and institutional support, the training
of coordinators and experts of the People’s Advocate territorial offices was
carried out.
Chapter 4. The activity of the People’s Advocate as supervisory
authority for personal data processing
4.1. Administrative capacity
In 2004, the People’s Advocate continued to
perform its duties as supervisory authority in the field of personal data
protection, according to the provisions of Law no. 677/2001 on the individuals’
protection regarding the personal data processing operations and the free
movement of such data. Through the Regulations for the organization and
functioning of the People’s Advocate, republished, (Official Gazette no.
922/October 11th 2004) the Directorate
for the protection of individuals with regard to personal data processing,
having 20 employees, was included in the organization structure of the People’s
Advocate. In 2004, contests were successively organized for the filling of the
vacancies, currently, the Direction functioning at 85% capacity of the
personnel chart.
4.2. Fulfillment of duties as supervisory
authority
A. Following the strengthening of the
institutional capacity of the specialized directorate, the efforts carried out
by the supervisory authority intensified, aiming at making personal data
controllers aware of their obligations, according to the applicable laws. Tools
directed to this purpose consisted in information,
advising and consulting activities, and specific control and investigation activities performed at the offices of
personal data operators.
a) With a view to improving the information level in respect of rights
and obligations arising from the Law no. 677/2001, the People’s Advocate
organized in 2004, 8 workshops and one
round table with the participation of personal data operators and NGOs in
the relevant fields of activity, as follows:
Ø February 2004 – the workshop “Protection of
personal data in insurance industry"
Ø March 2004 – the workshop “Protection of
personal data in finance-banking industry” and round table on “The role of NGOs
in informing citizens of the rights guaranteed by the Law no. 677/2001”
Ø April 2004 – workshop “Protection of data personal
in the field of health services”
Ø May 2004 – workshop “Protection of personal
data in the field of accommodation services”
Ø June 2004 – workshop “Protection of personal
data in the field of transportation”
Ø September 2004 – workshop “Protection of personal
data in the field of Internet provision services"
Ø October 2004 – workshop "Protection of
personal data in the field of recruitment and placement of personnel ”;
Ø November 2004 - workshop “Protection of
personal data in the activities of travel agencies”
Mass
media representatives contacted the supervision authority, press articles on
personal data protection being published in 2004 in financial-banking and
insurance magazines.
Following
the organization of the aforementioned workshops, various public authorities
and banking, insurance, transport companies and Internet providers have
notified personal data processing activities. In addition, the activity of
these entities was improved, by introducing a better practice regarding the
information of individuals whose personal data they process, according to the
provisions of the Law no. 677/2001 and to the recommendations addressed by the
People’s Advocate in capacity of supervisory authority.
Among
the public authorities having notified personal data processing activities to a
large extent, we have to mention mainly county police inspectorates, county
inspectorates of the Border Police and land registers and real estate
advertising offices. Moreover, the authorities subordinated to the Ministry of
Administration and Home Affairs drafted their own work methodologies for the
enforcement of the provisions of Law no. 677/2001 and of the orders issued by
the People’s Advocate in this field. A positive feedback to the People’s
Advocate efforts was the issuance by the President of the National Tax
Administration Agency of the order no. 657/2004 (Official Gazette no. 1069 of
November 17th, 2004) disposing the registration of the personal data
controller number assigned to the Agency, on the documents through which the
personal data regarding taxpayers -
individuals, are collected, stored or disclosed. A significant social –
professional category, the notary publics, submitted one forth of the overall
notifications registered in 2004 for data processing activities they performed
under the Law no. 36/1995 of notary publics and notary activities and Law no.
656/2002 on the prevention and sanctioning of money laundry.
On
the other hand, apart from the efforts of the supervisory authority, actively
supported by the institutions involved in the process of negotiation of
b) The
personnel of the specialized directorate gave 943 advices to personal data controllers, by telephone, in writing
or at the People’s Advocate offices, aiming at their compliance with their
obligations prescribed by the Law no. 677/2001 (Annex no. 1). In addition,
discussions were carried out with representatives of different professional
bodies leading to the approval of the codes of conduct passed by the
Association of Leasing Companies in Romania (Approval no. 2 in June 15th,
2004, published in the Official Gazette no. 627 of July 9th 2004)
and the Romanian Association of Direct Marketing (Approval no. 3 of September
15th, published in the Official Gazette no. 874 of September 24th,
2004). These codes of conduct enclose regulations for the protection of the
rights of individuals whose personal data may be processed by the members of
these professional bodies.
c) In performing its duties set forth by art 23
and 27 of the Law no. 677/2001, the People’s Advocate ordered in 2004 the
performance of 3 preliminary controls
and 6 investigations, both to public and private controllers. Based on the
conclusions of these activities, the People’s Advocate recommended the
observance of the rights of individuals whose personal data are subject to
processing activities, amendment of notifications or submission of
notifications to the People’s Advocate, for all the personal data processing
activities identified. Generally, the controllers complied with the
recommendations.
B. Pursuant to the intensification of the efforts
for the increase of public awareness with regard to the provisions of the Law
no. 677/2001, the activity as supervisory authority in the field of personal
data processing has known significant progress reflected also by the
statistics. Therefore, the overall number of controllers registered until now
is 1910, 1598 notifications for personal data processing being submitted. 1341 controllers were registered only
in 2004 (annex no 1); they submitted 1079
notifications (annex no 1)
As compared
to 2003, a significant progress is noticed; the number of personal data controllers
increased 5 times and the number of notifications increased by more than 300%.
Until now, a total of 97 notifications
referring to transferal of personal data abroad were recorded. 57 international transfer notifications
were recorded only in 2004. The progress is remarkable as compared to the
previous years, the notifications regarding transferal of personal data abroad
increasing by 196.5% as compared to 2003. For transferal notifications, in
2004, 53 authorizations were issued,
of the total of 66. In 2004, 21
applications for the issuance of
approvals were recorded, as compared to one in 2002 and none in 2003. Until
now, 4 approvals were issued.
4.3. Fulfillment of obligations
arising from the negotiation process of
The
protection of individuals with regard to personal data processing is included
in two EU negotiation chapters, respectively Chapter 3 - Free movement of services and Chapter 24 - Justice and home affairs. In 2004, the People’s Advocate
was asked to contribute to their implementation. It sent to the institutions in
charge of the integration of these chapters (the Ministry of Administration and
Home Affairs, the National Agency for Small and Medium Sized Enterprises and
Cooperation) as well as to the Ministry of European Integration, its
contribution to the Annual Report on the progress relating to the preparation
of EU accession, for November 2003 - November 2004.
In addition,
the People’s Advocate representatives attended the reunion of the sub-committee
no. 2 for Romania - European Union association: “Internal Market", held in
Brussels on July 19th, 2004, related to the status of the
preparation of Chapter 3 – Free movement of services, as well as the Committee
for Romania – European Union association, held in Brussels on November 2004,
the sector delegations for Chapter 24 – Justice and home affairs, as well as
the reunions of the Inter-ministerial Committee for European Integration.
4.4. International relations
Contacts with
counterpart authorities in
In addition,
the People’s Advocate attended international reunions in this field - Spring
Conference of the European Authorities for the protection of personal data
(April 21- 23rd 2004, Rotterdam, the Netherlands) and the International
Conference on the rights and responsibilities of individuals whose data are
processed, organized by the Secretariat of the European Council together with
the Bureau for Personal Data Protection (October 14-15th 2004,
Prague, The Czech Republic)
In the first
quarter of 2005, an exchange of experience with the Guarantors of personal data
protection in
4.5. Proposal for the establishment
of a separate supervisory authority
Law no.
677/2001 appointed the People’s Advocate as supervisory authority in the field of personal data protection, the
People’s Advocate being responsible of the monitoring and control, under the
aspect of legality, of personal data processing activities. The exercise of the
duties provided for by the Law no. 677/2001 by an Ombudsman institution does
not correspond to its traditional purpose and to the personal data protection
systems in the European Union member states (or future member states).
Therefore, in
June 2004, the Ministry of Administration and Home Affairs (coordinator
ministry for European integration, for Chapter 24 - Justice and Home Affairs)
issued a draft law (favorably
advised by the People’s Advocate) for the establishment of a separate
supervisory authority. This draft law comes to support the integration
requirements in the EU institutions and structures, following the spirit of the
concerns with regard to the compliance of the national institutions with their
counterparts in West-European countries. The European Commission has welcomed
the decision for the establishment of a separate supervisory authority for the
protection of personal data, recommending the amendment of the draft law from
the perspective of harmonization with the provisions of the Directive 94/46/EC
on the protection of individuals with regard to personal data processing by the
Community institutions and bodies and on the free movement of such data, as
well as of the Additional Protocol to the Convention of the European Council
no. 108 referring to the protection of individuals with regard to automate
processing of personal data. According to the provisions of this draft law on
the establishment of a supervision authority for personal data protection, the
taking over of the responsibilities as supervision authority from the People’s
Advocate will be carried out in 2005.
Chapter 5. The People’s Advocate activity in
the field of constitutional review of laws and ordinances
In the field of constitutional review of laws and ordinances,
conducted by the Constitutional Court of Romania, the People’s Advocate has
continued to draft opinions with regard to unconstitutionality exceptions
relating to laws and ordinances on human rights.
In 2004, the People’s Advocate drafted 621 opinions on
unconstitutionality exceptions, a progress in this field, as the percentage
increased to 160% as compared to 2003 and 345% as compared to 2002.
The 621 causes where the People’s Advocate opinion was
requested in 2004 referred mainly to alleged violations of: equality of rights
(124), free access to justice (72), the principle of non-retroactivity of laws and the principle
of more favorable criminal or contravention law (43), the right to defense (31)
the rule of law (19) (Annex no. 6)
It comes out
that approx. 19% of the cases refer
to the constitutional principle of the citizens' equality of rights. The
violation of this principle, such as invoked in the unconstitutionality
exceptions, referred in some cases to a possible discrimination on various criteria:
wealth, nationality, sex.
The lowest
percentage (below 1%) in the period of time studied, refers to opinions
relating to art 22 of the Constitution (the right to life, physical and mental
integrity), to art 32 of the Constitution (the right to education), art 55 of
the Constitution (national defense), art. 28 of the Constitution (secrecy of
correspondence), art 50 of the Constitution (protection of disabled persons)
Examining the unconstitutionality exceptions for which the
Constitutional Court requested the People’s Advocate opinion, it comes out that
they mainly referred to the so-called unconstitutionality of the legal
provisions: Law no. 146/1997 on the judiciary stamp taxes, further amended and
completed, Government Ordinance no. 33/2001 on some measures referring to the
salaries of public officers and of other categories of personnel in the
budgetary sector, as well as of the judiciaries, Law no. 631/2002 of the state
budget for 2003, Law no. 507/2003 of the state budget for 2004, art 278 and the
following of the Criminal Procedure Code.
In some unconstitutionality exceptions in respect of which the
Following the revising of the Constitution, the People’s Advocate was
entered the category of the subjects that may notify the Constitutional Court
within the preventive control, its duties in the field of protection of
individuals’ rights and freedoms in relation to public authorities being
strengthened.
In 2004, the People’s Advocate notified the Constitutional Court of the
unconstitutionality of some provisions of the Law of administrative procedure,
passed by the Romanian Parliament but not yet promulgated.
Chapter 6. Cooperation with counterpart
institutions and authorities
6.1.
Cooperation with counterpart
institutions (Ombudsmen) in other countries
According to the Romanian Constitution, the
People’s Advocate role is to protect individuals’ rights and freedoms in
relation to public authorities. In exercising its duties of autonomous and
independent public authority, the People’s Advocate has intensified and
diversified its in-country actions intended to ensure the accomplishment of
such goal.
Meanwhile, the People’s Advocate has
intensified its activity abroad, both with regard to bilateral relations with
counterpart institutions in
In 2004, its external activity targeted mainly
better information of the counterpart institutions in other countries, as well
as of the regional and international field authorities, with regard to the
Romanian People’s Advocate organization and functioning, constitutional
competences, actual modalities to perform its duties in capacity of supervisory
authority with regard to the observance of citizens' rights.
In this context, the actions related to the
explanation of the new constitutional regulations, of the significance and
impact over the increase of the People’s Advocate role and reputation, as an
institution of the rule of law, had a significant meaning.
During the visits to Romania of delegations of
the Ombudsmen from various countries, as well as with the occasion of the
participation of People’s Advocate representatives to conferences, symposia,
working tables, etc, it acted toward a proper presentation of the relations
between the People’s Advocate and the Romanian Parliament, other state
institutions, civil society, underlining the efforts for a better information
of citizens with regard to issues under the People’s Advocate competence.
In this respect, we have to add:
● the official visit to
● visit of the Rights’ Defender from
● visit of the delegation of the Petition
committee, formed of members of the parliamentary groups of the German
Bundestag, headed by Mr. Klaus
Hagermann, of the Social Democratic
Party in
● visit of the European Ombudsman, Mr. Nikiforos Diamandouros, in May 2004, an
opportunity to strengthen the cooperation between the European Ombudsman and
the People’s Advocate;
● official visit to Romania of the
representatives of the Ombudsman in Netherlands, within the Program „Matra”- (Stephan Sjouke, counselor, Jos de
Bruijn, deputy director, Sandra Loois and Jeanet van Wijk, expert);
The significance awarded by the People’s
Advocate to such visits was also emphasized by the intensive program of
contacts with the Senate, the Chamber of Deputies and the
The guests had the opportunity to visit
significant cultural and historical objectives in
The year 2004 represented a turning point in
the start-up of the Matra Program “Strengthening the administrative and
institutional capacity of the Ombudsman”, carried out by the People’s Advocate
in partnership with the National Ombudsman of Netherlands. The main program
activities are: preparatory study, choosing a public image and increase of
public awareness, analysis of the opportunity to use an efficient informal
procedure for the settlement of complaints, improving professional experience
for hearings, assessment and improvement of the People’s Advocate inquiries and
special reports, improvement of the complaint registration system.
In October 2004, the first activity of the
program “Matra”: the “preparatory study” started, contributing to the
establishment of a familiarly work environment, increasing the efficiency of
discussions and taking conclusions, ensuring a better understanding between the
representatives of the two partners.
In February 2005, the second phase of the
“Matra” program will start – choosing a public image and increasing public
awareness. The completion of the program will lead to the increase of the
People’s Advocate capacity to act to the accomplishment of its legal and
constitutional competences, in the context of various changes in
6.2. Participation of the People’s Advocate
representatives to meetings, conferences, symposia and international reunions
on human rights
The year 2004 meant an
increase of the participation of the People’s Advocate representatives to
international reunions organized within the Ombudsman International Institute,
European Ombudsman Institute, the Association of French-speaking Ombudsmen and
Mediators, as of which we mention:
General
Assembly of the European Ombudsman, in
The World
Forum for Human Rights, in
Regional
Conference „ The Ombudsman in South-Eastern Europe, increase of international
cooperation”, held in the Serbian Republic, in September 2004 (Simina Popescu,
People’s Advocate counselor and Mihaela Ududec, expert);
The
Congress of the Ombudsman International Institute and the Workshop organized by
Association of French-speaking Ombudsmen and Mediators, held in Quebec, Canada, in September 2004 (attending:
Anton Petrişor Parlagi, counselor and Claudia Sora, expert);
The
Reunion of the European Union - Romania Association Committee in
During these meetings, the People’s Advocate
representatives actively participated to the debates, underlined the Romanian
People’s Advocate activities for the protection of citizens' rights and
freedoms, spoke in favor of the intensification of the dialogue at regional and
international level between Ombudsmen in various countries, for the increased
participation of the International Ombudsman and European Ombudsman to the
efforts aimed at promoting the Ombudsman objectives.
In most of the occasions, this participation
was also used to distribute reference papers, among which the People’s Advocate
Activity Report for 2003, specialized papers drafted by the People’s Advocate
counselors and experts, such as papers regarding the protection of free
judgment and opinion, as well as of religious cults, the People’s Advocate
intervention for the protection of individuals’ economic rights, the People’s
Advocate activity in the field of protection of individuals serving
imprisonment sentences, the People’s Advocate activity in the field of combating
discrimination.
Chapter
7. Financial aspects
According to the Law no.
35/1997 regarding the organization and functioning of the People’s Advocate,
republished, the People’s Advocate has its own budget, integral part of the
state budget. The draft budget is approved by the People’s Advocate with the
consultative advice of the Ministry of Public Finance and is submitted to the
Government to be included separately in the draft budget under enactment. Thus, the People’s Advocate budget was
approved through the Law no. 507/2003 of the state budget for 2004 and ensured
mainly the material needs of the institution. The new offices were modernized;
computing equipment and furniture were purchased for the new head office and
territorial offices.
As the People’s Advocate
scope of activity has enlarged, its organization structures have diversified
and, implicitly, its budget, reflecting the major changes at the level of these
structures, has modified.
Its prerogatives, as well
as its functioning modality confers to this new institution a key role in the
strengthening of the democracy and founding the rule of law, as we know that
the observance of the human rights represents the aim to which all public and
private activities concur.
The data and information herein were revised
by:
Vasile Burtea, Deputy People’s Advocate; Simina Popescu, Claudia Sora,
the People’s Advocate counselors; Niculae Lapa, Secretary General.